State v. Harris
| Decision Date | 15 July 1970 |
| Docket Number | No. 7010SC405,7010SC405 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Leroy HARRIS. |
Atty. Gen. Robert Morgan, by Staff Atty., Carlos W. Murray, Jr., Raleigh, for the State.
Peyton B. Abbott, Raleigh, for appellant.
Appellant contends there was a fatal variance between the allegations in the bill of indictment and the proof offered by the State in that there was evidence offered by the State to the effect that the robbers also took money from the person and presence of one Roland Dutton, a checker at a cash register in the A & P Store, and that therefore even though defendant may have been acquitted in this trial he could have been indicted and tried for the armed robbery of Roland Dutton.
The bill of indictment charged as follows:
'THE GRAND JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Leroy Harris late of the County of Wake on the 15th day of February, 1969, with force and arms, at and in the County aforesaid, unlawfully, wilfully, and feloniously, having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: a shotgun whereby the life of David Navahlee Devaughn was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal, and carry away U.S. money of the value of $800.00 from the presence, person, place of business, and residence of David Navahlee Devaughn contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.'
The bill of indictment charges that the appellant, with the use and threatened use of a shotgun, endangered and threatened the life of one David Navahlee Devaughn and that appellant feloniously stole and carried away from David Navahlee Devaughn's presence $800.00 in U.S. currency. The essential elements of the offense of robbery with firearms (G.S. § 14--87) are alleged in the bill of indictment and the evidence offered by the State supports the charges in the bill of indictment.
In an indictment for robbery with firearms or other dangerous weapons (G.S. § 14--87), the gist of the offense is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapon. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525. And exhibition of a pistol (or shotgun) while demanding money conveys the message loud and clear that the victim's life is being threatened. State v. Green, 2 N.C.App. 170, 162 S.E.2d 641.
The armed robbery of David Navahlee Devaughn and the armed robbery of Roland Dutton, if such did occur, would constitute two separate offenses although they may have occurred in the same building; and the person involved could be indicted and tried for each offense separately.
'The purpose of the rule as to variance is to avoid surprise and to protect accused from another prosecution for the same offense. * * * ' 42 C.J.S. Indictments and Information § 254. And '(e)very defendant has the constitutional right to be informed...
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