State v. Young

289 S.E.2d 374 (1982)

STATE of North Carolina v. Robert Edward YOUNG.

No. 169A81.

Supreme Court of North Carolina.

March 30, 1982.

*375 Atty. Gen. Rufus L. Edmisten by Associate Atty. Michael Rivers Morgan, Raleigh, for the State.

Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.

COPELAND, Justice.

The sole question presented for our review is whether the trial court erred in submitting the crime of larceny from the person as a lesser included offense of common law robbery, the crime charged against defendant in the bill of indictment. A majority of the Court of Appeals held that the trial court did not err in this respect, and we agree with that conclusion.

Our courts have consistently considered robbery to be merely an aggravated larceny and thus have held that a defendant may be properly convicted of larceny from the person upon an indictment for common law robbery. State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966); State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595 (1964) (and cases there cited); State v. Moore, 211 N.C. 748, 191 S.E. 840 (1937); State v. Cody, 60 N.C. 197 (1864); State v. Kirk, 17 N.C.App. 68, 193 S.E.2d 377 (1972); see State v. Bell, 228 N.C. 659, 46 S.E.2d 834 (1948); accord 67 Am.Jur.2d, Robbery § 7 (1973). Nevertheless, defendant essentially asks us to re-examine the validity of the foregoing precedent *376 in light of his contentions that: (1) larceny from the person is not a crime of "less degree" of common law robbery, under G.S. 15-170, because both crimes are felonies carrying the same penalties (maximum imprisonment of ten years); and (2) the submission of a crime which carries the threat of identical punishment as a lesser included offense of the crime charged in the indictment would violate constitutional due process.[2] These arguments are meritless, and we shall not belabor the obvious at length.

In pertinent part, G.S. 15-170 provides that "[u]pon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime...." This Court has construed G.S. 15-170 to refer to both "included" and "lesser" offenses of the indicted charge. State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Rorie, 252 N.C. 579, 114 S.E.2d 233 (1960); see State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959). An offense is "included" in the crime formally charged if all of its essential elements are also averred in the indictment. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). There is no requirement in our law that an included offense must also be one which is subject to less punishment than the "greater offense" charged in the indictment. Cf. State v. McLawhorn, 43 N.C. App. 695, 260 S.E.2d 138 (1979), discretionary review denied, 299 N.C. 123, 261 S.E.2d 925 (1980). Thus, we hold that a crime of "less degree" under G.S. 15-170, supra, is not, contrary to defendant's contention, exclusively one which carries a less severe sanction than the crime formally charged in the indictment.

Since defendant cites no authority in his brief to support his naked assertion regarding due process, supra, we summarily reject his claim that G.S. 15-170 is unconstitutional. Defendant's constitutional rights to be informed of the nature of the accusation against him and to prepare for his defense were adequately enforced by means of an indictment charging an offense which necessarily included all of the "essential constituents" of another offense, which also arose upon the same criminal facts. See State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968); State v. Rorie, supra.

In sum, we reaffirm today an established line of precedent in our state and hold that a defendant, who has been formally charged with common law robbery, may be convicted of the "lesser included" offense of larceny from the person pursuant to G.S. 15-170 upon proper instructions to the jury by the trial court.

The decision of the Court of Appeals is affirmed.

AFFIRMED.

[2] Judge Becton dissented in the Court of Appeals upon the same grounds urged by defendant in this Court for a reversal of his conviction.