State v. Spratt, 256

• Decision Date: 03 November 1965
• Docket Number: No. 256,256
• Citation: 144 S.E.2d 569,265 N.C. 524
• Court: North Carolina Supreme Court
• Parties: STATE, v. Ronald James SPRATT.

Page 569

144 S.E.2d 569

265 N.C. 524

STATE, v. Ronald James SPRATT.

No. 256.

Supreme Court of North Carolina.

Nov. 3, 1965.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Parks H. Icenhour, and Staff Atty. William B. Ray, Raleigh, for the State.

Peter L. Reynolds, Charlotte, for defendant.

MOORE, Justice.

Defendant contends there is prejudicial error in that the court failed 'to charge and instruct the jury on the element of felonious intent.'

The bill indictment alleges, in pertinent part, that defendant 'on the 23rd day of December, 1964, * * * unlawfully, wilfully and feloniously, having in possession and with the use and threatened use of firearms * * *, to wit, a .32 caliber pistol, whereby the life of Dwight Blackmon was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously attempt to take, steal and carry away lawful money of the United States * * * from the presence, person, place of business * * * of Dwight Blackmon and Minute Markets, Inc. * * *' (Italics ours.)

The case was submitted to the jury on the charge of attempt, as alleged in the bill. An attempt to take money or other personal property from another under the circumstances delineated by G.S. § 14-87 constitutes, by the terms of that statute, an accomplished offense, and is punishable to the same extent as if there was an actual taking. State v. Parker, 262 N.C. 679, 138 S.E.2d 496.

The judge instructed the jury, inter alia, as follows:

'* * * for an attempt to be complete within and of itself as an attempt, there must not only be the intent to do the thing, but also some overt act which, if not warded or stopped, would result in the final completion of the act. So if the defendant merely intended to rob Mr. Blackmon, but did not do any overt act, calculated to complete the robbery, then the attempt would not have occurred, but if he did intend to rob him, and did commit an overt act, calculated and designed by him to bring about the robbery, then that would constitute an attempt or to put it another way, ladies and gentlemen, if the defendant armed with a pistol drew it on and pointed it at Mr. Blackmon for the intention and purpose of taking money from his cash register by force and against his will, and if he actually made an overt effort to take money or any part of it, and if in doing so it was by force and against the will of Mr. Blackmon and if his life was in danger or threatened, the crime of attempt to commit robbery under this Statute would have been complete.' (Emphasis added.)

Under the factual circumstances of this case, the foregoing excerpt from the charge contains a sufficient statement of all of the elements of the offense charged, including that of intent.

A taking with 'felonious intent' is an essential element of the offense of armed robbery, of attempt to commit armed robbery, and of common law robbery, and it is prejudicial error for the court to charge that defendant may be convicted of such offense even though the taking was without felonious intent. State v. Chase, 231 N.C. 589, 58 S.E.2d 364. The comprehensiveness and specificality of the definition and explanation of 'felonious intent' required in a charge depends on the facts in the particular case. There must be some explanation in every case. State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595. But, where the evidence relied on by defendant tends to admit the taking but to deny that it was with felonious intent, it is essential that the court fully define the 'felonious intent' contended for by the State and also explain defendant's theory as to the intent and purpose of the taking, in order that the jury may understandingly decide between the contentions of the State and defendant on that point. In other words, where the evidence is susceptible of conflicting inferences on the question of intent, develops a direct issue on that point and makes intent the battleground of the case, full and explicit instructions on this phase is required. State v. Lawrence, supra. For instance, as in Lawrence, defendant may contend that his conduct in taking the property amounts only to a forcible trespass. There is a material...