State v. Carnes
| Decision Date | 10 November 1971 |
| Docket Number | No. 19,19 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Ronald Dwaine CARNES and Richard Allen Carter. |
Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.
Robert J. Sapp, Winston-Salem, for defendants appellants.
Three assignments of error were brought forward by both defendants. Two relate to the admission of evidence and one relates to the judge's charge. An additional assignment of error is brought forward by Carnes and relates solely to him.
Each defendant assigns as error the admission in evidence of the .38 pistol and of testimony that it was loaded. He contends the pistol pointed at Mrs. Stroud when defendants were robbing her was a .32 and therefore evidence as to the loaded .38 found by Officer Lloyd when defendants were arrested was irrelevant.
The evidence shows the loaded .38 pistol was found beside the white Toyota less than half an hour after the robbery and at a location two miles from the Li'l General Food Store. It was found on the same occasion when the officers found the .32 pistol and a box of .32 bullets in the glove compartment, Mrs. Stroud's handbag on the back seat, bottles of wine and champagne from the Li'l General Food Store in the Toyota and bills and coins in the pockets of defendants.
If defendants, on the occasion of the robbery, had a loaded .38 pistol available for use in case their felonious venture 'backfired,' this would seem a relevant circumstance even though no necessity arose for the display or use of the loaded .38 pistol. Relevant or not, this evidence constituted an insignificant part of the State's case. The overwhelming evidence of defendants' guilt dispels any suggestion that prejudice resulted from the admission in evidence of the .38 pistol and of testimony that it was loaded.
Each defendant assigns as error the admission in evidence of the bills and coins found in defendants' pockets. Defendants direct attention to the discrepancy between the aggregate of the bills and coins so found and the amount allegedly taken from the Li'l General Food Store and to the failure to identify the money in defendants' possession as bills and coins taken from the Li'l General Food Store. In view of the time, place and circumstances of the arrest of defendants, the fact they had bills and coins in their possession would seem relevant. We perceive no prejudicial error in the admission of the bills and coins and the testimony relating thereto.
As to each defendant, the court instructed the jury they could return one of only two possible verdicts: 'either guilty as charged in the bill of indictment or not guilty.' Each defendant assigns as error the court's failure to instruct the jury that they might find him 'guilty of some lesser degree of the offense charged: common law robbery, attempted robbery, assault with a deadly weapon, or simple assault.' The assignment is without merit.
G.S. § 15--169 provides: 'On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, If the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character.' (Our italics.)
G.S. § 15--170 provides: 'Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.'
G.S. § 15--169 and G.S. § 15--170 are applicable Only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 516 (1958), and cases cited; State v. Williams, ...
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