State v. Sawyer

• Decision Date: 01 March 1944
• Docket Number: 2.
• Citation: 29 S.E.2d 34,224 N.C. 61
• Parties: STATE v. SAWYER et al.
• Court: North Carolina Supreme Court

29 S.E.2d 34

224 N.C. 61

STATE v. SAWYER et al.

No. 2.

Supreme Court of North Carolina

March 1, 1944

Criminal prosecution upon indictment charging defendants with highway robbery.

The bill of indictment charges, in substance, that on August 14 1943, upon 'a common and public highway' at and in the county of Camden, State of North Carolina, H. W. (alias Bill) Sawyer, Willard Muse and Shelton Casper did unlawfully and feloniously assault, and put in fear Romeo J. LaBurque Charles Spies and Enrico N. Oliverine, and did then and there feloniously and violently and against their will, and from their person, take, steal and carry away fourteen dollars in money of the goods and chattels of the said Romeo J LaBurque, Charles Sipes and Enrico N. Oliverine, against the form of the statute, etc.

Upon the trial below the State offered as witnesses Romeo J LaBrueque, spelled in indictment LaBurque, and Enrico N. Oliverine, whose testimony tends to show that they and Charles Sipes, three sailors in the United States Navy, having come into Elizabeth City, North Carolina, from a base nearby, on afternoon of Saturday, August 14, 1943, and attended a picture show, decided about 11:30 o'clock P. M. 'to thumb a ride' to Norfolk. A man, whose identity does not appear in the record, came along in a car and picked them up. He asked if they would like to go to Chantilly Beach, which is in Camden County, about two miles on a dirt road off the Elizabeth City to Norfolk highway. He said that 'there was a little action there', that they could have a good time there; that he had just left and taken the girl home. They decided to go there, but when they arrived the place was closed. After looking around, the sailors started walking back toward the highway, when the man who had taken them there called them back and asked if they wanted to go or to ride to Norfolk with him. They accepted the invitation and got in the car. Whereupon, before the sailors had time to close the door four other men jumped in the car. There were three including the driver on the front seat, and five including the three sailors on the back seat. The sailors protested that the car was crowded, and spring would break, saying that they 'would just as soon walk', and started to get out. But the driver said it was no trouble at all, and started the car and 'took some back road up there'. After traveling about fifteen minutes, one of the men said he wanted to get out and the car was stopped. All except the sailors got out, and some one of them asked the sailors if they wanted to get out, or told them to get out, but the sailros replied in the negative. The question was repeated, according to testimony of Oliverine, and the sailors again said 'No'. Whereupon, the five men including the driver, got around the car, at the doors and windows, and opened doors * * * one of them pointed out in the courtroom as one of defendants, saying to the sailors 'All right, boys, this is a shake-down', or 'This is a shake-down', and upon being asked by Oliverine what he meant, said again 'Just a shake-down'. Thereupon $10 was taken from LaBrueque, $3.40 from Oliverine, and $3.60 from Sipes. The driver of the car reached through the door and took the billfold from the right front pocked of LaBrueque, and got out in the front light, looked through the billfold, took out the money and gave the billfold back to LaBrueque. In like manner the money was taken from Oliverine and Sipes by others. In the taking the defendants actively participated. The five men 'were quite men' compared to the sailors. Oliverine on being asked if he knew who took the money from Sipes replied: 'I don't know who took his money, I was pretty well occupied with a man who was taking care of me. I did not say it was the man who took my money, because as soon as he took care of me I didn't even look at him. I was ready to bust a blood vessel'. Afterwards, according to testimony of LaBrueque, they, the men, tried to force the sailors to drink from a bottle of liquor, which they pretended to do but did not do. Oliverine testified, 'They came in the car and that fellow over there practically demanded we take a drink or else we would be thrashed * * * it seemed like it was hours but I could not say how long it was'. Then the man took the sailors back to the Chantilly Road and the Elizabeth City-Norfolk highway, let them out, and gave them the wrong direction to Elizabeth City, and then put out the headlights on the car and started and left.

The sailors obtained a ride to Elizabeth City and 'went straight to the police station and talked to Corporal Laws', a member of the State Highway Patrol, and reported they had been robbed of the money in the vicinity of Chantilly Beach. Later in the presence of the officer, as well as on the trial, the defendants Sawyer and Muse were identified by LaBrueque and Olvierine, who were unable to identify Casper.

Patrolman Laws testified as witness for the State by way of corroborating in part witnesses LaBrueque and Oliverine. Then on cross examination he was asked if he did not fail to serve subpoena on Sipes because Sipes did not identify the defendants. The officer answered in the negative. Then upon re-direct examination and over objection by defendants, the solicitor asked these questions and the officer gave the answers indicated:

'Mr. Simpson asked you if it was because Sipes could not identify these men that you permitted him to leave. I ask you to tell the jury if Sipes, at the time you carried the men down to the Naval Air Station for the line-up, whether or not he identified Muse as one of the men who participated in the robbery? A. He did.

'Q. I ask you to tell the jury whether, at that time Sipes identified Bill Sawyer as being one of the participants in the robbery? A. He did.

'Q. Was there any reason for your excusing him other than the fact that he had a leave of absence from his Commanding Officer? A. None. I had no control over the man.'

At the close of State's evidence the court directed verdict in favor of defendant Casper, but denied motion for judgment as of nonsuit in behalf of defendants Sawyer and Muse. Exception. Thereupon, the defendants Sawyer and Muse, as witnesses is their behalf, pleaded an alibi, and denied being present at the time of the alleged robbery, and denied any participation therein, and offered other testimony in corroboration of their alibi. These defendants further offered testimony tending to break down the identification of them by the State's witnesses LaBrueque and Oliverine. The motions for judgment as of nonsuit at the conclusion of all the testimony were denied. Exception.

Verdict: 'Guilty as charged as to each of the defendants'.

Judgment: As to each of the defendants, imprisonment in State Prison for not less than three nor more than five years.

Defendants appealed to Supreme Court and assign error.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

M. B. Simpson, of Elizabeth City, for appellants.

WINBORNE Justice.

Defendants in the main present and stress for error three points:

1. It is contended that the court should have nonsuited the case, (a) 'because no force was shown to have been used', and (b) that there is a fatal variance between the indictment and the evidence in that the indictment charges defendants with taking $14 in money of the goods and chattels of LaBrueque, Sipes and Oliverine, and the evidence shows that LaBrueque lost $10, Oliverine $3.40, and Sipes $3.60, and neither had any interest in the money of the other, and the amount taken totaled $17 and not $14 as charged, and in that the evidence shows no joint taking.

As to the...