State v. Rogers

99 S.E.2d 803 (1957)

246 N.C. 611

STATE v. Desmond A. ROGERS, Jr.

No. 3.

Supreme Court of North Carolina.

September 18, 1957.

*804 George B. Patton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

LeRoy & Goodwin, Elizabeth City, McCown & McCown, Manteo, and F. V. Dunstan, Elizabeth City, for appellant.

JOHNSON, Justice.

The defendant excepts to the following portion of the charge:

"So the Court instructs you that if the State of North Carolina has which has the burden of proof to satisfy you from the evidence and beyond a reasonable doubt, has so satisfied you that at the time and place in question the defendant Desmond A. Rogers, Jr. took a certain amount of personal property, to wit, money, lawful money of U. S., from the person of Marvin Daniels or took the same in his presence without his consent or against his will, by violence, intimidation or putting him in fear, then it would be your duty to return a verdict of guilty as charged."

The vice in this instruction is that it directed the jury to return a verdict of guilty of armed robbery as charged in the bill of indictment upon a mere finding that he was guilty of common-law robbery. Armed robbery under our statute, G.S. § 14-87, superadds to the minimum essentials of common-law robbery the additional requirement that the robbery must be committed "with the use or threatened use of * * * firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, * * *." See State v. Chase, 231 N.C. 589, 58 S.E.2d 364. True, an indictment *805 for armed robbery will support a conviction of common-law robbery or assault where there is evidence of guilt of such lesser offenses. State v. Bell, 228 N.C. 659, 46 S.E.2d 834; G.S. §§ 15-169 and 15-170. See also State v. McNeill, 229 N.C. 377, 49 S.E.2d 733. However, in the case at hand the trial court failed to instruct the jury as to the elements of armed robbery as distinguished from robbery at common law, and the jury were told to return one of only two verdicts, namely guilty as charged or not guilty.

The defendant is entitled to a new trial. This being so, it is not necessary to discuss other exceptions brought forward by the defendant.

New trial.