State v. Jackson

HedRICK, J.

The appellants’ first assignment of error reads as follows:

“1. That warrant issued on the 12th day of July, 1968 and was served upon the defendants on the 12th, 13th day of July, 1968; that counsel was appointed in the Superior Court on the 8th day of August, 1968; that defendants’ constitutional rights were thereby violated.”

The foregoing purports to be based on an exception to the orders appointing counsel. The appellants in their brief make the statement that: “Defendants charged with felony are entitled to counsel at all stages of proceedings against them from their arrest until the conclusion of the case.” Appellants in their brief cite no authority for this statement. There has been no showing that these defendants were in any manner prejudiced by the failure of the court to appoint counsel at the moment of arrest nor is there any contention that there was insufficient time allowed to prepare for trial. The right of a defendant in- a criminal action to be represented by counsel does not apply literally to every stage of the proceedings, but only to the “critical stages”. Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740, cert. den. 390 U.S. 1030, 20 L. Ed. 2d 288, 88 S. Ct. 1423; State v. Bentley, 1 N.C. App. 365, 161 S.E. 2d 650. In the instant case, no showing has been made that any “critical stage” of the proceedings had been reached before counsel was appointed. The appellants’ contentions with respect to the appointment of counsel are without merit.

The appellants’ second assignment of error challenges the ruling of the trial court denying the motion for judgment as of nonsuit made at the close of the State’s evidence. It is elementary that when a defendant offers evidence after his motion for judgment as of nonsuit is overruled, he thereby waives all right to urge that denial as error upon appeal. G.S. 1-183; State v. Prince, 270 N.C. 769, 154 S.E. 2d 897; State v. Fikes, 270 N.C. 780, 155 S.E. 2d 277; State v. Howell, 261 N.C. 657, 135 S.E. 2d 625.

The appellants’ third assignment of error challenges the ruling of the trial court denying the motion for judgment as of nonsuit renewed at the close of all of the evidence.

In the case of State v. Primes, 275 N.C. 61, 165 S.E. 2d 225 (1969), the Court said:

“On such a motion the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom.”

G.S. 14-87 provides:

“Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or- from any place of business, residénce or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or. persons in the commission of such crime, shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than five nor more than thirty years.”

The evidence presented by the State was sufficient to require the submission of the case to the jury upon the charge of armed robbery; therefore, the motion for judgment as of nonsuit was properly overruled. State v. Reid, 5 N.C. App. 424, 168 S.E. 2d 511.

The jury found each of the defendants guilty of common law robbery. An indictment for armed robbery under G.S. 14-87 will support a verdict of guilty of common law robbery. G.S. 15-170; State v. Stevenson, 3 N.C. App. 46, 164 S.E. 2d 24; State v. McLean, 2 N.C. App. 460, 163 S.E. 2d 125; State v. Bell, 228 N.C. 659, 46 S.E. 2d 834.

The appellants’ fourth and final assignment of error was as follows:

“4. For that the court erred in his charge to the jury.”

This is an exception'to the entire charge of the court. This is a “broadside exception” and presents no question for review upon appeal.G.S. 1-180; State v. McCaskill, 270 N.C. 788, 154 S.E. 2d 907; Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729; State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364.

In the trial of the defendants in the superior court, we find

No error.

Mallaed, C.J., and Morris, J., concur.