State v. Parker, 225

Decision Date04 November 1964
Docket NumberNo. 225,225
PartiesSTATE, v. Nathaniel PARKER, George Porter, Gus Parker, and James Edward McCree.
CourtNorth Carolina Supreme Court

T. W. Bruton, Atty. Gen., Richard t. Sanders, Asst. Atty. Gen., for the State.

T. O. Stennett, Charlotte, for defendant appellants.

HIGGINS, Justice.

The robbery with firearms statute, G.S. § 14-87, under which the defendants were indicted, provides: 'Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, instrument, or means whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another * * * at any time, either day or night, or who aids or abets such person * * * 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.' If all of the elements are present, the offense is complete whether the taking is successful or amounts only to an attempt to take personalty from the victim.

The statute was passed in 1929 following a series of bank robberies, in one of which the police officers appeared on the scene in time to prevent the robbers from getting possession of any money, though one employee of the bank was seriously wounded by gun fire. The statute wisely condemns a perpetrator 'who takes or attempts to take personal property.' (emphasis added)

In this case it should be noted that the bill charged that the defendants 'did * * * attempt to take * * * the personal property of Erskine Hill, to-wit: money and a pocketbook.'

The solicitor's announcement amounted to a bill of particulars giving notice that in making out the case the State would rely on proof the defendants attempted to take personal property from the victim rather than proof of the actual taking. The solicitor's announcement neither lessened the degree of guilt charged in the bill nor reduced the power of the court to punish for it. So great is the offense when life is endangered and threatened by the use of firearms or other dangerous weapons, that it is not of controlling consequence whether the assailants profit much or little, or nothing, from their felonious undertaking. The attempt to take property by the forbidden means, all other elements being present, completes the offense. Hence the defendants may not contend the solicitor's announcement worked a dismissal of the charge of robbery with firearms and reduced the charge in the bill to an attempt to commit that offense.

The defendants assign as error the following from the judge's charge:

'Now, if the State has satisfied you as to the guilt of one or more or all of the defendants from the evidence and beyond a reasonable doubt on the charge of robbery with firearms, then you would not consider his guilt or innocence as to that defendant or defendants of common law robbery, but if the State has failed to satisfy you from the evidence and beyond a reasonable doubt that firearms or other dangerous implements were used whereby the life of a person was endangered and threatened, then you would not convict either of the defendants on the charge of attempted highway robbery, but you would then consider the guilt or innocence of such defendants--I think I said highway robbery, I meant not convict of statutory robbery, that is robbery with firearms, the charge contained in the bill, but you would then consider the guilt or innocence of the defendant of highway robbery which does not include the element of the use of firearms or other dangerous weapons.'

The State offered evidence tending to show that the four defendants, acting in concert, followed and fell upon Erskine Hill and his father, Clarence Hill, with intent to rob them and by the use of a pistol and an axe handle assaulted both; shot Clarence Hill through the kidney and through the shoulder; shot Erskine Hill three times--once through the spine, causing complete paralysis.

The court charged the jury in substance that if it rendered a verdict of guilty under the robbery with firearms bill, it became unnecessary to consider any other possible verdict. The State's evidence lacked positive proof that the defendants actually took any personal property from Erskine Hill. The attempt to take is sufficient in armed robbery. An attempt to take is not sufficient in common law robbery. The taking must be by violence or intimidation. State v. McNeely, 244 N.C. 737, 94 S.E.2d 853; State v. Bell, 228 N.C. 659, 46 S.E.2d 834. In larceny from the...

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