DocketNumber： 8018SC326
Citation Numbers： 270 S.E.2d 524, 49 N.C. App. 103, 1980 N.C. App. LEXIS 3353
Judges： Whichard, Hedrick, Hill
Filed Date： 10/7/1980
Status： Precedential
Modified Date： 10/19/2024
Court of Appeals of North Carolina.
*525 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Gen. John F. Maddrey, Raleigh, for the State.
Robert L. McClellan, Asst. Public Defender, Greensboro, for defendant-appellant.
WHICHARD, Judge.
Defendant assigns as error the failure of the trial court to charge the jury on the lesser included offense of felonious larceny.
[R]obbery, a common-law offense not defined by statute in North Carolina, is merely an aggravated form of larceny, and has been defined as ``the taking, with intent to steal, of the personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation.' Absent the elements of violence or intimidation, the offense becomes larceny. (Citations omitted.)
State v. Bailey, 4 N.C.App. 407, 411, 167 S.E.2d 24, 26 (1969).
Nothing else appearing, the defendant's testimony that he did not at any time draw a knife on the victim's assistant manager, Jones; did not have a knife in his possession at any time while he was with Jones; and did not say anything at any time to threaten or force Jones to give him the money, but merely walked out with the money when Jones turned his back to defendant, if believed by the jury, would have negated the element of violence or intimidation required to elevate the crime of felonious larceny to that of common law robbery or armed robbery. The State contends, however, that the defendant, by his own admission, closed the door to Jones' office as he ran out and locked it from the outside, leaving Jones confined inside; and that this additional fact constitutes the requisite use of force or violence in the taking of the property of another necessary to preclude a possible verdict of felonious larceny.
The general rule applicable to the State's contention in this regard is set forth in 67 Am.Jur.2d, Robbery, § 26, p. 45 (1973) as follows:
The violence or intimidation [necessary to elevate felonious larceny to robbery] must precede or be concomitant or contemporaneous with the taking. Hence, although the cases are not without conflict, the general rule does not permit a charge of robbery to be sustained merely by a showing of retention of property, or an attempt to escape, by force or putting in fear. (Emphasis supplied.)
See also Annot., 93 A.L.R. 3d 643 (1979).
The law of this jurisdiction is in accord with the general rule quoted above. In State v. John, 50 N.C. 163 (1857), while the victim and the defendant were examining a "bill of money" which the defendant said he had found, the victim felt the defendant's hand in his pocket on his pocketbook. The victim seized the defendant's arm at the same time the defendant snatched the victim's money, and a scuffle ensued in which the victim was thrown out of his wagon. When the victim arose, the defendant had escaped with the victim's pocketbook and *526 the "bill of money." The court there viewed the struggle between defendant and the victim as "fairly imputable to an effort on the part of the prisoner to get loose from [the victim's] grasp and make his escape," John, at 169; and it held that the facts did not constitute highway robbery. The court said: "There was no violence-no circumstance of terror resorted to for the purpose of inducing the prosecutor to part with his property for the sake of his person." John, at 167.
In the case sub judice, the defendant's admitted act of closing and locking the office door as he exited, leaving the victim's assistant manager confined in the office, was not precedent to nor concomitant or contemporaneous with the act of taking the money bag. It is, even more so than the scuffle between the defendant and the victim in the John case, "fairly imputable to an effort on the part of the [defendant] to... make his escape." Thus, the act of closing and locking the door cannot be held to constitute the requisite violence or putting in fear to make the crime in question robbery as a matter of law, so as to preclude the possibility of a verdict of felonious larceny.
It was incumbent upon the trial court, therefore, to charge the jury on the lesser included offense of felonious larceny. Its failure to do so denied the defendant the potential benefits of his own testimony by effectively limiting the possible verdicts to guilty of robbery (armed or common law) or not guilty. The jury could not comply with the court's instructions and at the same time return a verdict giving credence to the defendant's testimony in his own behalf.
When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding defendant guilty of a higher degree of the same crime.
State v. Bell, 284 N.C. 416, 419, 200 S.E.2d 601, 603 (1973). (Emphasis supplied.)
Because of the trial court's failure to instruct the jury on the lesser included offense of felonious larceny, there must be a
New trial.
HEDRICK and HILL, JJ., concur.