State v. Brown, 61

• Decision Date: 06 May 1980
• Docket Number: No. 61,61
• Citation: 265 S.E.2d 191,300 N.C. 41
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jesse Ely BROWN, Jr. and Palmer Junior Coffey.

Page 191

265 S.E.2d 191

300 N.C. 41

STATE of North Carolina v. Jesse Ely BROWN, Jr. and Palmer Junior Coffey.

No. 61.

Supreme Court of North Carolina.

May 6, 1980.

Rufus L. Edmisten, Atty. Gen. by J. Chris Prather, Associate Atty. Gen., and Robert W. Newsom, III, Asst. Atty. Gen., Raleigh, for the State.

Richard E. Mattar, Boone, for defendant-appellant Brown.

Gerald I. Applefield, Statesville, for defendant-appellant Coffey.

BRANCH, Chief Justice.

Appeal of Defendant Brown

Defendant Brown first assigns as error the denial of his motion to sever the charged offenses.

G.S. 15A-926 in part provides:

Joinder of offenses and defendants. (a) Joinder of Offenses. Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.

This statute, which supplanted G.S. 15-152 and was effective 1 July 1975, permits joinder of offenses which are based on a series of acts or transactions "constituting parts of a single scheme or plan" if the joinder does not hinder or deprive a defendant of his ability to present his defense. The question before the court on a motion to sever is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial. Whether offenses should be joined is a matter addressed to the sound discretion of the trial judge. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978).

Here the theory of the State's prosecution was that on 26 January 1978 defendant Brown broke into and entered the Pruett home and took the stereo for the purpose of selling the stolen property. Pursuant to this single plan or scheme, he went to the Winkler apartment on the night of 2 February 1978 to sell the stolen property, and while there committed the crime of robbery with firearms when he obtained $300 from David Pruett.

Under the facts of this case, we cannot say that the trial judge abused his discretion in denying defendant's motion to sever or that defendant has shown any resulting prejudice.

Furthermore, G.S. 15A-927(a)(2) provides:

If a defendant's pretrial motion for severance is overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Any right to severance is waived by failure to renew the motion. (Emphasis added.)

This record discloses that defendant failed to renew his motion at the close of all the evidence and thereby waived his right, if any, to severance. However, defendant takes the position that his motion for appropriate relief, filed after judgment, amounted to a renewal of his motion to sever at the close of all the evidence. A motion for appropriate relief, by the terms of the statute, is made after the verdict is rendered. G.S. 15A-1414. A motion made after the verdict comes too late to avoid the waiver provision of G.S. 15A-927(a)(2).

Defendant Brown next contends that the trial judge erred in denying his motions to dismiss the charge of robbery with firearms and in denying his subsequent motion for appropriate relief. G.S. 14-87 of the General Statutes governs the crime of robbery with firearms and provides 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 from any place of business . . . shall be guilty of a felony.

Robbery with firearms is a legislative outgrowth of common law robbery, which is the felonious taking of money or goods of any value from the person of another or in his presence, against his will, by violence or by putting him in fear. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971). G.S. 14-87 does not create a new offense, but provides for a more serious punishment when firearms or other dangerous weapons are used. State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974).

A motion to dismiss is governed by the same rules as motions for judgment as of nonsuit. The question presented by the motion is whether there is sufficient evidence to send the case to the jury and to support a verdict of guilty of the charged offense. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977).

Initially, we note that there is ample evidence that defendant Brown by the use or threatened use of a deadly weapon took money in the amount of $300 from David Pruett against his will and by putting him in fear. Even so, defendant argues that the State has failed to prove the essential element of felonious intent.

Felonious intent is an essential element of the crime of robbery with firearms and has been defined to be the intent to deprive the owner of his goods permanently and to appropriate them to the taker's own use. State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410 (1948).

Defendant argues that he did not know or have reasonable grounds to know that he was not entitled to the possession of the property or that the property that he took was in fact the property of David Pruett. The crux of the question presented by this assignment of error is whether there is any evidence of felonious intent.

This Court considered the question of felonious intent in the case of State v. Sowls, 61 N.C. 151 (1866). There the defendant was charged with common law robbery. The State offered evidence tending to show that the defendant, who mistakenly thought he was acting under the orders of Captain Meares of the Home Guard, entered a dwelling and by force took a sword for the purpose of disarming one Stanly and not for the purpose of appropriating it to his own use. Stanly was not present, but his father and wife delivered the sword to the defendant out of fear. At trial, counsel for the defendant requested the court to instruct the jury that if the defendant acted under the order of Meares, believing that he had a lawful military command, they should acquit him, whether Meares was authorized to give such orders or not. The court declined to give the charge, and the defendant was convicted. In granting a new trial, the Court in part stated:

This offense is defined to be "a felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, and putting him in fear." 2 East, P.C., 707; Roscoe's Cr.Ev., 890.

It must be done animo furandi, with a felonious intent to appropriate the goods taken to the offender's own use. . . .

If the prisoner were acting in obedience to orders issued by the captain of a company of that guard, or bona fide thought that he was acting under such orders, and in obedience to them took the prosecutor's sword, not for the purpose of appropriating it to his own use, but solely with the view to disarm the prosecutor, he could not be held to have been guilty of robbery, no matter how wrongfully he may have acted. Under such circumstances the animus furandi would be as much wanting as it was in Hall's case, 3 Car. & P., 409 (14 Eng.C.L.Rep., 337), which is thus stated by Mr. Roscoe: The prisoner had set wires in which game was caught. The gamekeeper finding them, was carrying them away, when the prisoner stopped him, and desired him to give them up. The gamekeeper refused, upon which the prisoner lifting up a large stick, threatened to beat out his brains if he did not deliver them. The keeper, fearing violence, delivered them. Upon an indictment for robbery, Vaughan, Baron, said: "I shall leave it to the jury to say whether the prisoner acted under an impression that the wires and the pheasant were his own property; for, however he might be liable to penalties for having them in his possession, yet if the jury think that he took them under a bona fide impression that he was only getting back the possession of his own property, there was no animus furandi, and the prosecution must fail." The prisoner was acquitted.

61 N.C. at 153-55.

The Court also ordered a new trial in State v. Curtis, 71 N.C. 56 (1874), so that the jury might find whether the defendant who was charged with robbery took the property with felonious intent. In that case the Court said:

In the case before us the special verdict states what was done, but the intent is not stated. And it is very evident that that was the difficulty they had in coming to a general verdict. They could not satisfy themselves as to the intent. Was it the purpose to steal, or was it a Christmas frolic. Now that is not a question of law, but it is a question of fact which the jury ought to have found.

Id. at 59.

Here the evidence discloses that defendant Brown, according to his own testimony, had bought a stereo in the nighttime, from a man he had not previously known, for the sum of $300. Defendant placed a value on this property of approximately $900. He testified that, when he first entered the Winkler apartment, Mr. Pruett told him that the stereo belonged to him and that Pruett offered to show him documents to prove his ownership. He stated that he did not know for sure that it was Mr. Pruett's stereo, but he felt he was entitled to either the stereo or the money he had paid for it. He did not know he was buying it from a thief.

Applying the well-recognized rule that upon motion for nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State and the State must be given the benefit of every reasonable inference to be drawn from the evidence, we hold that there was sufficient evidence to permit the jury to reasonably infer that defendant by the threatened use of a shotgun feloniously took...