State v. Dunn

216 S.E.2d 412 (1975) 26 N.C. App. 475

STATE of North Carolina
v.
Johnny DUNN.

No. 7514SC88.

Court of Appeals of North Carolina.

July 2, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Archie W. Anders, Raleigh, for the State.

Ann F. Loflin, Durham, for defendant-appellant.

PARKER, Judge.

Defendant assigns error to the overruling of his motions for nonsuit. He contends that the evidence shows only that Fortune dropped the groceries in order to aid his escape and that it fails to show that the groceries were taken from Fortune's person by use of a rifle. We find the evidence amply sufficient to allow the case against defendant to go to the jury.

"The gravamen of the offense [of armed robbery, G.S. 14-87] is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery." State v. Ballard, 280 N.C. 479, 485, 186 S.E.2d 372, 375 (1972). While in common-law robbery a taking is necessary, in armed robbery either the taking or the attempt to take will support a verdict under G.S. § 14-87. State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964). On the present case the State's evidence showed that defendant pointed a rifle in Fortune's face and demanded his money. This evidence would be sufficient to submit the case to the jury because it satisfies the statutory requirements of an attempted taking by force or putting in fear by the use of firearms or other dangerous weapons. See State v. Harris, 8 N.C.App. 653, 175 S.E.2d 334 (1970). The evidence that defendant and his companions picked up the groceries, after they had threatened, beaten and driven Fortune away, also satisfies the element of a taking. The evidence shows one continuing transaction amounting to armed robbery, with the elements of violence and of taking so joined in time and circumstances as to be inseparable. See State v. Reaves, 9 N.C.App. 315, 176 S.E.2d 13 (1970). This assignment of error is overruled.

Nor did the trial court err, as defendant now contends, in not instructing the jury on lesser offenses included in the crime charged. Here, the State's evidence shows that defendant was guilty, if guilty of any offense, of the offense charged. Defendant's testimony at trial was that he was not present at all when the offense was committed, but was then at his sister's house. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. Hence, there is no such necessity if the State's evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice." State v. Hicks, 241 N.C. 156, 159-60, 84 S.E.2d 545, 547 (1954). Defendant's testimony that he did not own a rifle does not create such a conflict in the evidence as to require submission to the jury of an issue as to common-law robbery.

Defendant assigns error to other portions of the charge, each of which we have carefully reviewed and have found no reversible error therein. Read contextually, the court's instructions were adequate and not misleading regarding how the jury should view defendant's testimony. Nor did the court err in charging that under the evidence in the case the taking away of the groceries from where they had been dropped by Fortune would in law be a taking of property from the person and presence of Fortune. State v. Reaves, supra.

Defendant finally contends that the trial court erred in denying his motions for a new trial and for judgment notwithstanding the verdict made immediately upon return of the jury's verdict. The record shows no basis presented for such motions and we find no error in their denial. Later, prior to the trial court's pronouncing sentence, defendant was allowed to state to the court that his testimony at trial was largely untrue. Defendant then stated what he then contended the true facts to be. That defendant may have committed perjury in his trial testimony is no basis for granting him a new trial.

In defendant's trial and in the judgment appealed from, we find

No error.

BROCK. C. J., and ARNOLD, J., concur.