State v. Brown

• Decision Date: 10 October 1893
• Parties: STATE v. BROWN.
• Court: North Carolina Supreme Court

18 S.E. 51

113 N.C. 645

STATE v. BROWN.

Supreme Court of North Carolina

October 10, 1893

Appeal from superior court, Edgecombe county; Hoke, Judge.

Preston Brown was convicted of highway robbery, and appeals. Affirmed.

A charge in an indictment that defendant "did make an assault," and "put in bodily fear and danger of his life," and "then and there feloniously and violently did seize, take, and carry away" ten dollars from the prosecutor, sufficiently alleges the use of force.

The Attorney General, for the State.

CLARK J.

Upon inspection of the transcript, it appearing that though the "case on appeal" recited that there was a verdict of guilty and judgment, the record proper failed to show that there had been a trial by jury, and to set out the sentence of the court below, this court ex mero motu directed an instanter certiorari to supply the defect, which has now been done.

The indictment sets out two counts, --one for highway robbery second, for an attempt to commit the same. The verdict found the defendant guilty on the first count. It is therefore unnecessary to consider the exception made to the second count. But had the defendant been convicted of the attempt to commit highway robbery, the first count, if good, would have supported the verdict, since the act of 1891, (chapter 205, § 2,) provides: "Upon the trial of any indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime." This statute is a copy of that in force in England and in New York and other states. It extends to all crimes the provision which to a more limited extent was already in force in this state by virtue of chapter 68, Acts, 1885, and, indeed, at common law. Whart. Crim. Pl. & Pr. (9th Ed.) §§ 246, 465. The joinder of a count for a lesser offense or an attempt is now mere surplusage.

The objections to the first count, raised by motion to quash, and renewed after verdict by a motion in arrest of judgment were: (1) "For that there was no value of the money designated in the bill." In an indictment for this offense the value or description of the article taken, or attempted to be taken, is not material, for the gist of the offense is not the taking, but a taking by putting in fear or by force. State v. Brown, 73 N.C. 83, citing Rex v. Bingley, 5 Car. & P. 602. But in fact the charge of "ten dollars in money" is an allegation of "the value of ten dollars," since money is the measure of values. McCarty v. State, 127 Ind. 223 26 N.E. 665. Indeed, the description would be sufficient under our statute, even in an indictment for larceny, and would be sustained by proof of the theft of coin or bank or treasury notes. State v. Freeman, 89 N.C. 469; Code, § 1190. (2) "That the word 'steal,' nor any equivalent word, is charged in the bill." It is not necessary that it should be. The indictment is a copy of the form given in Whart. Pl. & Pr. § 410. Among the many definitions given of robbery probably...