State v. Chase

• Citation: 231 N.C. 589,58 S.E.2d 364
• Decision Date: 22 March 1950
• Docket Number: No. 147,147
• Court: United States State Supreme Court of North Carolina
• Parties: STATE, v. CHASE.

Page 364

58 S.E.2d 364

231 N.C. 589

STATE, v. CHASE.

No. 147

Supreme Court of North Carolina.

March 22, 1950

Attorney General Harry McMullan and Assistant Attorney General T. W. Bruton, for the State.

Proctor & Dameron, Marion, for defendant.

DENNY, Justice.

The defendant assigns as error the following portion of his Honor's charge: 'If the State of North Carolina has satisfied you beyond a reasonable doubt that the defendant, Otis Chase, unlawfully and by means of force and placing in fear the person of the witness Williams, without consent, and against his will and wilfully carried away without felonious intent to deprive the true owner of said money and to appropriate any part of it to his own use, the Court instructs you to return a verdict of Guilty of Common Law Robbery.'

There is error in this portion of the charge, in that the jury is instructed that it may return a verdict of guilty of common law robbery, even though it finds the taking was without felonious intent. State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410.

The defendant objects and excepts, not only to this portion of the charge, but to other parts as well, wherein the jury was instructed it might return a verdict of guilty of common law robbery on the ground that all the evidence clearly indicated that if the defendant was guilty of any robbery he was guilty of robbery with firearms.

We concede that upon the evidence adduced in the trial below it would have been proper to have limited the jury to one of two verdicts: Guilty of robbery with firearms or not guilty. State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; State v. Manning, 221 N.C. 70, 18 S.E.2d 821; State v. Cox, 201 N.C. 357, 160 S.E. 358. But his Honor elected to instruct the jury that if the State had failed to satisfy it beyond a reasonable doubt that the defendant was guilty of 'armed robbery', it might return a verdict of guilty of common law robbery. Conceding this to be error, we have consistently held that such error is not harmful to the defendant. Brown, J., in speaking for the Court in State v. Quick, 150 N.C. 820, 64 S.E. 168, 170, said: 'Suppose the court erroneously submitted to the jury a view of the case not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder, what right has the defendant to complain? It is an error prejudicial to the state, and not to him.' To like effect is State v. Matthews, 142 N.C. 621, 55 S.E. 342. 'An error on the side of mercy is not reversible'. State v. Fowler, 151 N.C. 731, 66 S.E. 567. State v. Rowe, 155 N.C. 436, 71 S.E. 332; State v. Casey, 159 N.C. 474, 74 S.E. 625; State v. Blackwell, 162 N.C. 672, 78 S.E. 316.

Moreover, robbery is not divided into separate offenses by the statute. G.S. § 14-87. As Barnhill, J., said in State v. Jones, 227 N.C. 402, 42 S.E.2d 465, 467: 'The primary purpose and intent of the Legislature in enacting Chap. 187, P.L. 1929, now G.S. § 14-87, was to provide for more severe punishment for the commission of robbery when such offense is committed or attempted with the use or threatened use of firearms or other dangerous weapons. It does not add to or subtract from the common-law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission or attempted commission of the offense sentence shall be imposed as therein directed. State v. Keller, 214 N.C. 447, 199 S.E. 620.'

If the instruction on common law robbery to which defendant excepts, were correct, we would not...