STATE v. ROGERS

BRANCH, J.

Defendant in apt time made motion to quash the bill of indictment. He contends that this motion should have been allowed since the bill of indictment did not apprise defendant of the place where the crime was alleged to have occurred, so as to enable defendant to prepare his defense and protect him from a second prosecution for the same offense.

The only description in the indictment as to the place where the crime was committed is that it occurred in Mecklenburg County.

Every defendant has the constitutional right to be informed of the accusation against him and the warrant or indictment must set out the charge with such exactness that he can have a reasonable opportunity to prepare his defense, can avail himself of his conviction or acquittal as a bar to a subsequent prosecution for the same offense, and the charge must be such as to enable the court, on conviction, to pronounce sentence according to law. Article I, Sec. 11, North Carolina Constitution. State v. Strickland, 243 N.C. 100, 89 S.E.2d 781.

Common law robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will by violence or putting him in fear. State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595. G.S. 14-87, Robbery with Firearms, creates no new offense, but provides that when firearms or other dangerous weapons are used, more severe punishment may be imposed. State v. Stewart, 255 N.C. 571, 122 S.E.2d 355. However, it is noted that the two crimes differ in that there must be an actual taking of property for there to be the crime of common law robbery, whereas under G.S. 14-87 the offense is complete if there is an attempt to take personal property by use of firearms or other dangerous weapon. State v. Parker, 262 N.C. 679, 138 S.E.2d 496. Where time and place are not essential elements of the offense itself, a defendant may obtain further information in respect thereto by motion for a bill of particulars. State v. Eason, 242 N.C. 59, 86 S.E.2d 774; G.S. 15-143.

The indictment alleges that defendant did in Mecklenburg County by the use or threatened use of a dangerous weapon rob one Ronald W. Lofton of personal property of value which was subject of robbery.

The time or place was not essential element of the offense in instant case. The jurisdiction of the court was established by the allegation that the crime occurred in Mecklenburg County, and after jurisdiction was established, the place of the crime became immaterial. The indictment charged the offense in a plain, intelligible and explicit manner, and contained averments sufficient to enable the court to proceed to judgment and thus bar a subsequent prosecution for the same offense. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857.

The instant case and State v. Partlow, 272 N.C. 60, 157 S.E.2d 688, are distinguishable. In Partlow, defendant was charged with being an accessory before and after the fact to an armed robbery committed by named persons, without any averments in the indictment as to the identity of the victim or the manner and method in which defendant counseled, incited, induced or encouraged the principals. Here, by indictment and proof defendant and victim are identified and the manner and method in which defendant was purported to have committed the crime are alleged in the indictment and evidence was offered to fit the essential allegations. The trial court correctly denied defendant's motion to quash.

Defendant further contends that the court erred in denying his motion for nonsuit at the close of the State's evidence and at the close of all the evidence, because of fatal variance between the indictment and the proof.

The indictment, in part, alleges that defendant "did then and there unlawfully, willfully, forcibly, violently and feloniously take, rob, steal and carry away $415.00 in lawful money of the United States, the property of Ronald W. Loftin, to wit: $415.00 of the value of more than $200.00 from the presence, person, place of business, and resident of Ronald W. Loftin, . . ."

All of the evidence shows that Ronald W. Lofton did not own the property taken, nor was it taken from his residence or place of business; however, all the evidence does show that the property alleged to have been taken was in the custody and care of Ronald W. Lofton and that it was of value.

Defendant's motions to dismiss the prosecution as of nonsuit properly raised the question of variance between the indictment and the proof. State v. Law, 227 N.C. 103, 40 S.E.2d 699.

Defendant cites numerous cases for the proposition that a fatal variance results, in larceny cases, where title to property is laid in one person and proof shows it to be in another. State v. Law, supra; State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920; State v. Nunley, 224 N.C. 96, 29 S.E.2d 17; State v. Harris, 195 N.C. 306, 141 S.E. 883; State v. Bell, 65 N.C. 313. This is a correct statement of the law as to larceny; however, it is not necessary that ownership of the property be laid in any particular person in order to allege and prove the crime of armed robbery.

"We have said in a number of cases that in an indictment for robbery the kind and value of the property taken is not material — the gist of the offense is not the taking, but a taking by force or putting in fear. State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; State v. Brown, 113 N.C. 645, 18 S.E. 51; State v. Burke, 73 N.C. 83. See also State v. Mull, 224 N.C. 574, 31 S.E.2d 764. However, in these cases the objection was not that there was no description but that the description was insufficient; the indictments described the property in general terms, such as `money.'

In our opinion an indictment for robbery must contain a description of the property sufficient, at least, to show that such property is the subject of robbery. To constitute the offense of robbery the property taken must be such as is the subject of larceny. State v. Trexler, 4 N.C. 188; 46 Am. Jur., Robbery, 8, p. 142. . . ." State v. Guffey, 265 N.C. 331, 144 S.E.2d 14.

In the instant case there is allegation and proof that defendant accomplished the robbery by the use or threatened use of a dangerous weapon and that the property taken was so described by allegation and proof sufficient to show it to be of value and the subject of larceny.

In the case of State v. Wynne, 151 N.C. 644, 65 S.E. 459, the indictment charged defendant with unlawfully selling spirituous liquor by the small measure to Alex Weaver and Alonzo Wynne, and then alleged certain acts descriptive of the manner and means by which the offenses were committed. The trial court granted a motion to quash the indictment and the Supreme Court in its opinion stated:

"It was error to grant the motion to quash. The bill charges an `unlawful sale of liquor by the small measure.' It is unnecessary to pass upon the effect of the evidential matters charged. The bill is complete without them. Utile per inutile non vitiatur. A verdict of guilty, or not guilty, is only as to the offense charged — not of surplus or evidential matters alleged. Revisal, sec. 3254, forbids a bill to be quashed `if sufficient matters appear therein to enable the court to proceed to judgment. The use of superfluous words will be disregarded. . . .

"The charge of an unlawful sale of liquor is plainly made. If that is proved, the defendant is guilty. If it is not proved, he is not guilty. The additional facts charged are surplusage and ought not to have been charged. Their effect, if proven, is evidential only, and was a matter for instruction to the jury. . . ."

See also State v. Abernathy, 265 N.C. 724, 145 S.E.2d 2.

Admittedly, there is variance between the allegations and the proof offered, but the variance is not material. The indictment charged the essential elements of the crime of armed robbery. Proof was offered to support the material allegations. The additional allegations as to ownership of the property were surplusage and must be disregarded.

The trial court correctly denied motions for nonsuit.

Defendant assigns as error the action of the court in submitting to the jury an included lesser crime on the ground there was no evidence establishing commission of the lesser crime.

In support of this contention defendant cites State v. Bell, 228 N.C. 659, 46 S.E.2d 834, where defendant excepted to failure of the court to charge the jury that they might acquit the defendants of the crime of robbery with firearms as charged in the indictment under consideration, and convict them of a crime of less degree. Holding that the court did not err in failing to so instruct the jury, this Court stated:

"It is true that in a prosecution for robbery with firearms, an accused may be acquitted of the major charge and convicted of an included or lesser offense, such as common law robbery, or assault, or larceny from the person, or simple larceny, if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence on the trial. 42 C.J.S., Indictments and Information, sections 275, 283, 293; S. v. Jones, supra; S. v. Moore, 211 N.C. 748, 191 S.E. 840; S. v. Holt, 192 N.C. 490, 135 S.E. 324; S. v. Cody, 60 N.C. 197. If the jury believed the testimony in the case under review, however, it was its duty to convict the defendants of robbery with firearms because all of the evidence tended to show that such offense was committed upon the prosecuting witness, Ernest Fox, as alleged in the indictment. There was no testimony tending to establish the commission of an included or lesser crime. . . ."

In instant case there was sufficient evidence for the jury to find that a deadly weapon was used in the perpetration of the robbery; however, since the witness did not actually see the weapon and defendant, by his cross-examination, strongly advanced the theory that no deadly weapon was used, enough doubt was created as to the use of a deadly weapon to warrant submission of the lesser offense to the jury. Instant case is readily distinguishable from the Bell case, since in Bell all the evidence showed the use of a dangerous weapon in the commission of the robbery.

Further, in the case of State v. Chase, 231 N.C. 589, 58 S.E.2d 364, defendant was charged with armed robbery and kidnapping. The jury found the defendant not guilty of kidnapping and armed robbery, but returned a verdict of guilty of common law robbery. The defendant contended that the court erred in submitting the lesser charge of common law robbery. Holding that there was no error in submitting the lesser charge, this Court stated:

"We concede that upon the evidence adduced in the trial below it would have been proper to have limited the jury to one of two verdicts: Guilty of robbery with firearms or not guilty. S. v. Bell, 228 N.C. 659, 46 S.E.2d 834; S. v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; S. v. Manning, 221 N.C. 70, 18 S.E.2d 821; S. v. Cox, 201 N.C. 357, 160 S.E. 358. But his Honor elected to instruct the jury that if the State had failed to satisfy it beyond a reasonable doubt that the defendant was guilty of `affirmed robbery,' it might return a verdict of guilty of common law robbery. Conceding this to be error, we have consistently held that such error is not harmful to the defendant. Brown, J., in speaking for the Court in S. v. Quick, 150 N.C. 820, 64 S.E. 163, said: `Suppose the court erroneously submitted to the jury a view of the case not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder, what right has the defendant to complain? It is an error prejudicial to the State, and not to him.' To like effect is S. v. Matthews, 142 N.C. 621, 55 S.E. 342. `An error on the side of mercy is not reversible,' S. v. Fowler, 151 N.C. 731, 66 S.E. 567. . . ."

The trial judge did not commit error in charging on the lesser included offense.

The entire charge, when read contextually, presents the law fairly and clearly to the jury, and we find no prejudicial error resulting to defendant.

We find no prejudicial error in the trial below.

No error.