State v. Bell

• Decision Date: 24 March 1948
• Docket Number: 218
• Citation: 46 S.E.2d 834,228 N.C. 659
• Parties: STATE v. BELL et al.
• Court: North Carolina Supreme Court

46 S.E.2d 834

228 N.C. 659

STATE v. BELL et al.

No. 218

Supreme Court of North Carolina

March 24, 1948

Two separate indictments were returned against the defendants, one in criminal action No. 199 charging them with robbery with firearms of Ernest Fox and the other in criminal action No. 210 charging them with robbery with firearms of Stewart Fox. Upon suggestion of the defendants, the cases were removed from Wilkes County to Yadkin County for trial pursuant to G.S. s 1-84. The two indictments were consolidated for trial by consent, and were treated in the court below as separate counts in the same bill. State v Alridge, 206 N.C. 850, 175 S.E. 191. The defendants pleaded not guilty to both charges.

The defendants offered no evidence relating to the merits. Stripped of its nonessentials, the uncontroverted testimony of the State presented the picture set forth below.

Sometime after midnight on April 26, 1947, Ernest Fox, his twelve year old daughter, Faye Fox, and his sister-in-law, Aileen Fox were proceeding in a westerly direction along a highway in Wilkes County in a Studebaker pick-up truck owned by Ernest Fox and driven by his brother, Stewart Fox. This truck was chased, overtaken, and stopped by the occupants of an automobile, which was equipped with a spotlight and which was brought to a standstill within six feet of the truck. The two defendants alighted from the automobile, leaving a third man sitting therein with something which Ernest Fox took to be a sawed-off shot gun.

After dismounting from the automobile, the defendants went to the truck and falsely represented themselves and their companion in the automobile to be officers of the law. The defendant Glenn Bell, wore 'a police cap with a badge up in front' and 'a blue coat like police wear' and was armed with a pistol which was in plain view of Ernest Fox and the other occupants of the truck. Glenn Bell threatened to arrest Stewart Fox for speeding and demanded that he exhibit to him the registration card covering the Studebaker truck. Upon being informed that the truck belonged to Ernest Fox, Glenn Bell ordered Ernest Fox to get out of the truck and to submit the registration card to his inspection. When Ernest Fox alighted from the truck in response to this command, Glenn Bell forcibly seized and searched him. Upon finding some pistol cartridges in Ernest Fox's pockets, Glenn Bell accused Ernest Fox of having a 'damn gun' and commanded Ernest Fox to surrender such weapon to him. Ernest Fox thereupon took his unloaded pistol from the glove compartment of the truck, and delivered it to Glenn Bell, who subsequently carried it away.

After relieving Ernest Fox of the empty pistol, Glenn Bell said that he was going to arrest Stewart Fox for speeding and Ernest Fox for having a gun, and asked them 'about paying a cash bond.' At this point, Glenn Bell stuck his own pistol against Ernest Fox's stomach, saying, 'See how quick I can get it out. By God, I can use it. By God, I ain't afraid to use it, and I will use it. ' Glenn Bell then 'took his gun down and kept waving it around' and threatened to take Ernest Fox and Stewart Fox to jail unless they paid him $45.00 as fines 'for speeding and carrying a gun. ' Ernest Fox thereupon gave this sum to Glenn Bell, who afterwards carrried it away. At this time Ernest Fox's little daughter, Faye Fox, was 'crying big.'

Ernest Fox paid the $45.00 over to Glenn Bell because Glenn Bell and his companions were armed, because 'they had me scared', and because he was afraid that otherwise he and his brother would be forcibly carried to jail by the defendants and their associates, leaving his small daughter and his sister-in-law unprotected upon an unfamiliar and deserted road at 1:30 o'clock in the morning.

While these events took place, Millard Bell and the third man in the automobile were present, and by their acts, gestures, and words, they actively encouraged and incited Glenn Bell to do the acts set out above.

The jury found both of the defendants guilty upon both of the indictments. The court sentenced each defendant separately in each case to imprisonment in the State's prison for not less than fifteen nor more than twenty years, but provided, in effect, for only one punishment as to each defendant by stipulating that the two separate sentences pronounced against each defendant should be executed concurrently. The defendants appealed to this Court, assigning errors in the trial below.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Allen & Henderson, of Elkin, F. D. B. Harding, of Yadkinville, and Trivette, Holshouser & Mitchell, of N. Wilkesboro, for defendants, appellants.

ERVIN Justice.

The defendants stress their contention that the trial court ought to have dismissed both charges for insufficiency of proof in conformity to their motions for judgment of nonsuit under the statute. G.S. s 15-173. It is obvious that this position is well taken with respect to the indictment wherein the defendants are alleged to have robbed Stewart Fox. The consequence is that consideration will be given in detail here only to the assignments of error relating to the case in which the defendants have been convicted of the perpetration of robbery with firearms upon Ernest Fox.

In so far as it is now germane, the statute concerning robbery with firearms or other dangerous weapons reads as follows: 'Any person or persons who having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another * * * or who aids or abets any such person or persons in the commission of such crime, 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. ' G.S. s 14-87.

In his lucid opinion in State v. Keller, 214 N.C. 447, 199 S.E. 620, 622, Mr. Justice Winborne pointed out that the Legislature enacted this statute 'to provide for more severe punishment for the commission of robbery with firearms, and other specified weapons, than is prescribed for common law robbery. ' See, also, State v. Jones, 227 N.C. 402, 42 S.E.2d 465. Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his...