State v. Hare
| Decision Date | 14 December 1955 |
| Docket Number | No. 507,507 |
| Citation | 90 S.E.2d 550,243 N.C. 262 |
| Parties | STATE, v. Earl HARE. |
| Court | North Carolina Supreme Court |
Wm. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., R. Brookes Peters, General Counsel for State Highway & Public Works Commission, and Parks H. Icenhour, Raleigh, attorney for Highway Commission, for the State.
Clyde A. Douglass, II, Raleigh, for petitioner.
The question to be determined is whether the petitioner is entitled to his release since he is being held under a judgment entered upon a plea of guilty of an offense for which he has never been indicted. The indictment with respect to robbery only charged that the defendants, with the threatened use of certain firearms, to-wit: a pistol, attempted to take personal property, etc. Robbery with fireams is not charged.
We have repeatedly held that the purpose and intent of the Legislature in enacting 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 any firearms or other dangerous weapon, or implement or means,' than is provided for common-law robbery. This statute does not attempt to change the offense of common-law robbery or to divide it into degrees. State v. Chase, 231 N.C. 589, 58 S.E.2d 364; State v. Jones, 227 N.C. 402, 42 S.E.2d 465; State v. Keller, 214 N.C. 447, 199 S.E. 620.
A defendant may be indicted for robbery with firearms and be acquitted of that specific charge and convicted of the included crime of common-law robbery without firearms, or a lesser degree of the latter crime if the evidence so warrants. State v. Bell, 228 N.C. 659, 46 S.E.2d 834. However, it does not follow that upon an indictment that only charges an attempt to commit robbery with firearms, a defendant may be convicted of common-law robbery. Under such an indictment, a defendant might be convicted of an attempt to commit robbery without firearms. This Court said in State v. Jordan, 226 N.C. 155, 37 S.E.2d 111, 112, 'It is permissible under our practice to convict a defendant of a less degree of the crime charged, G.S. § 15-170, or for which he is being tried, when there is evidence to support the milder verdict, State v. Smith, 201 N.C. 494, 160 S.E. 577 * *, but it would seem to be without precedent to try a defendant for one offense and to convict him of another and greater offense, even though the conviction be of a higher degree of the same offense for which he is being tried.'
42 C.J.S., Indictments and Informations, § 300, page 1330.
It is likewise said in 14...
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State v. Hageman, 206A82
...in this State that absent statutory provisions to the contrary, an attempt to commit a felony is a misdemeanor. State v. Hare, 243 N.C. 262, 90 S.E.2d 550 (1955); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938); State v. Stephens, 170 N.C. 745, 87 S.E. 131 (1915); State v. Jordan, 75 N.C. 2......
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State v. White
...(1968); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964); State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959); State v. Hare, 243 N.C. 262, 90 S.E.2d 550 (1955); State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955); State v. Bell, 228 N.C. 659, 46 S.E.2d 834 (1948); State v. Chapman, 49......
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State v. Squires
...Amendment rights. Defendant is correct that our case law requires conformity between a charge and a judgment. State v. Hare, 243 N.C. 262, 264, 90 S.E.2d 550, 552 (1955). Nevertheless, in this case no variance exists between the charges in the indictments and the judgments entered. As noted......
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State v. Valentine, No. COA09-261 (N.C. App. 10/20/2009)
...property may be. Under an indictment for assault with intent to rob, accused cannot be convicted of robbery. State v. Hare, 243 N.C. 262, 264, 90 S.E.2d 550, 552 (1955) (quoting 42 C.J.S. Indictments and Informations § 300, at "The essential elements of larceny are: (1) the taking of the pr......