State v. Harris

175 S.E.2d 334 (1970) 8 N.C. App. 653

STATE of North Carolina
v.
Leroy HARRIS.

No. 7010SC405.

Court of Appeals of North Carolina.

July 15, 1970.

Atty. Gen. Robert Morgan, by Staff Atty., Carlos W. Murray, Jr., Raleigh, for the State.

Peyton B. Abbott, Raleigh, for appellant.

BROCK, Judge.

Appellant contends there was a fatal variance between the allegations in the bill of indictment and the proof offered by the State in that there was evidence offered by the State to the effect that the robbers also took money from the person and presence of one Roland Dutton, a checker at a cash register in the A & P Store, and that therefore even though defendant may have been acquitted in this trial he could have been indicted and tried for the armed robbery of Roland Dutton.

The bill of indictment charged as follows:

"THE GRAND JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Leroy Harris late of the County of Wake on the 15th day of February, 1969, with force and arms, at and in the County aforesaid, unlawfully, wilfully, and feloniously, having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: a shotgun whereby the life of David Navahlee Devaughn was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal, and carry away U. S. money of the value of $800.00 from the presence, person, place of business, and residence of David Navahlee Devaughn contrary to the form of the statute in such case made and provided and against the peace and dignity of the State."

The bill of indictment charges that the appellant, with the use and threatened use of a shotgun, endangered and threatened the life of one David Navahlee Devaughn and that appellant feloniously stole and carried away from David Navahlee Devaughn's presence $800.00 in U. S. currency. The essential elements of the offense of robbery with firearms (G.S. § 14-87) are alleged in the bill of indictment and the evidence offered by the State supports the charges in the bill of indictment.

In an indictment for robbery with firearms or other dangerous weapons (G.S. § 14-87), the gist of the offense is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapon. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525. And exhibition of a pistol (or shotgun) while demanding money conveys the message loud and clear that the victim's life is being threatened. State v. Green, 2 N.C.App. 170, 162 S.E.2d 641.

The armed robbery of David Navahlee Devaughn and the armed robbery of Roland Dutton, if such did occur, would constitute two separate offenses although they may have occurred in the same building; and the person involved could be indicted and tried for each offense separately.

"The purpose of the rule as to variance is to avoid surprise and to protect accused from another prosecution for the same offense. * * *" 42 C.J.S. Indictments and Information § 254. And "[e]very defendant has the constitutional right to be informed of the accusation against him and the warrant or indictment must set out the charge with such exactness that he can have a reasonable opportunity to prepare his defense, can avail himself of his conviction or acquittal as a bar to a subsequent prosecution for the same offense, and the charge must be such as to enable the court, on conviction, to pronounce sentence according to law." State v. Rogers, supra.

The indictment charged the offense in a plain, intelligible and explicit manner, and contained averments sufficient to enable the court to proceed to judgment, and to bar a subsequent prosecution for the armed robbery of David Navahlee Devaughn. This assignment of error is overruled.

Appellant next assigns as error the failure of the court to mention in its charge to the jury appellant's contention that only three persons were involved in the robbery and that it had been shown already that one person had pleaded guilty and two others had been convicted. This contention overlooks the clear inference from the evidence that three were in the store and a fourth was driving the getaway car.

Nevertheless, it is well settled that a judge is not required by law to state the contentions of the litigants. Likewise, the court is not required to give all the contentions of the parties, but only to give them as fairly to one side as for the other and if a party desires a fuller statement of his contentions he must aptly tender a request therefor. 3 Strong, N.C. Index 2d, Criminal Law, Sec. 118.

If appellant had desired to have a fuller statement of his contentions presented in the charge of the court, the proper remedy was to call the court's attention to this omission by a timely request therefor.

Appellant concedes that his assignment of error No. 2 is without merit in that there was sufficient evidence to take the case to the jury. Likewise we find that the court did not abuse its discretion by its failure to grant appellant's motion to set aside the verdict as contrary to the evidence. This being the subject of appellant's assignment of error No. 3, it is overruled. Appellant's assignment of error No. 4 is based on the court's denial of defendant's motion that the verdict be set aside for error committed during the course of the trial. Finding no error in the trial prejudicial to the defendant, this assignment of error is overruled.

No error.

BRITT and HEDRICK, JJ., concur.