State v. Lawrence, 1

• Decision Date: 12 June 1964
• Docket Number: No. 1,1
• Citation: 262 N.C. 162,136 S.E.2d 595
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Walter Thomas LAWRENCE.

Page 595

136 S.E.2d 595

262 N.C. 162

STATE of North Carolina v. Walter Thomas LAWRENCE.

No. 1

Supreme Court of North Carolina.

June 12, 1964

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Richard T. Sanders, for the State.

Philip P. Godwin, Gatesville, and Gerald F. White, Elizabeth City, for defendant.

MOORE, Justice.

Defendant assigns as error portions of the judge's charge defining robbery and applying the legal elements of the offense to the facts in evidence.

In the preliminary explanation of the law with respect to robbery the judge stated to the jury: 'Robbery, gentlemen of the jury, is the felonious taking of the personal property from the person of another, or in his presence, without his consent or against his will, by violence, intimidation or putting him in fear.'

Robbery, as distinguished from robbery with firearms or other dangerous weapons (G.S. § 14-87), is strictly a common law offense and is not defined by statute. Common law robbery (the offense with which defendant is charged in the indictment) is defined and explained by Sir William Blackstone as follows: 'Open and violent larceny from the person, or robbery, the ripina of the civilians, is the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear. 1. There must be a taking, otherwise it is no robbery. * * * 2. It is immaterial of what value the thing taken is. * * * 3. Lastly, the taking must be by force, or a previous putting in fear. * * * This previous violence, or putting in fear, is the criterion that distinguishes robbery from other larcenies. * * * it is enough that so much force, or threatening by word or gesture, be used, as might create an apprehension of danger, or induce a man to part with his property without or against his consent.' Chitty's Blackstone (19th London Ed., 1857), Book IV, Ch. XVII, pp. 242-244.

Common law robbery has been repeatedly and consistently defined by this Court in accordance with the Blackstone definition. State v. Stewart, 255 N.C. 571, 572, 122 S.E.2d 355; State v. McNeely, 244 N.C. 737, 741, 94 S.E.2d 853; State v. Sipes, 233 N.C. 633, 635, 65 S.E.2d 127; State v. Bell, 228 N.C. 659, 662, 46 S.E.2d 834; State v. Holt 192 N.C. 490, 492, 135 S.E. 324; State v. Brown, 113 N.C. 645, 647, 18 S.E. 51; State v. Burke, 73 N.C. 83, 87. The phraseology most often employed is, 'Robbery at common law 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 putting him in fear.' However, there are some slight but immaterial variations in the language used in the cases.

There was formerly more severe punishment if it was alleged and proven that the offense was committed on or near a public highway. Blackstone comments: 'This species of larceny as debarred of the benefit of clergy by statute 23 Hen. VIII, c. 1, and other subsequent statutes, not indeed in general, but only when committed in a dwelling-house, or in or near the king's highway. A robbery therefore in a distant field, or footpath, was not punished with death; but was open to the benefit of clergy, till the statute 3 & 4 W. & M. c. 9, which takes away clergy from both principals and accessories before the fact, in robbery, wheresoever committed.' These statutes were repealed by 7 & 8 G. IV. c. 27. Until a relatively recent date robbery in or near a public highway (highway robbery) was a capital offense in North Carolina. State v. Johnson, 61 N.C. 140 (1866); State v. Anthony, 29 N.C. 234 (1847). But the distinction between robbery and highway robbery, as to punishment and otherwise, is no longer recognized in this jurisdiction--the punishment is imprisonment in the State's prison for a term not to exceed 10 years. G.S. § 14-2; In re Sellers, 234 N.C. 648, 68 S.E.2d 308. But see G.S. § 14-87; G.S. § 14-88; G.S. § 14-89; G.S. § 14-89.1.

The excerpt from the charge, quoted above, of the trial judge in the instant case is in accord with the definition of common law robbery approved by this Court. Defendant agrees that this is so, but contends that the phrase 'felonious taking,' without further explanation, is insufficient to inform the jury of the specific felonious intent requisite to constitute robbery in a forcible taking, and that it is error for the judge, in applying the law to the facts (G.S. § 1-180), to fail to explain in certain and, to a layman, understandable terms the essential felonious intent implicit in the expression 'felonious taking.' We think that the question raised is of sufficient importance to warrant a re-examination of robbery cases involving jury instructions with respect to the elements of robbery and especially those dealing with felonious intent as an element.

State v. Sowls, 61 N.C. 151, is a leading case. By force and intimidation defendant took a sword from a house against the will of the occupants. He stated that he was acting under orders of the captain of the Home Guard, the sword was taken for the purpose of disarming prosecutor and not to appropriate it. The act was committed in 1865 during the War between the States; the case was tried in 1866 after the surrender. The trial judge refused defendant's request that he instruct the jury that it was only a case of forcible trespass, but charged the jury that they could not convict unless they were satisfied beyond a reasonable doubt that the taking and carrying away was with a 'felonious intent.' He 'explained that the taking and carrying away are felonious, where the goods are taken against the will of the owner * * *, or where possession is obtained either by force, or surprise, or by trick * * *, and where the taker intends in any such case fraudulently to deprive the owner of his entire interest in the property, against his will.' On appeal a new trial was awarded. The Court, after giving the common law definition of robbery, said: 'It must be done animo furandi, with a felonious intent to appropriate the goods taken to the offender's own use. Roscoe's Cr.Ev., 895. Although a person may wrongfully take the goods, yet unless he intended to assume the property in them, and to convert them to his own use, it will amount to trespass only, and not to a felony. 1 Hale's P. C., 590.' Further: '* * * it is apparent that the distinction between robbery and forcible trespass is, that in the former there is, and in the latter there is not, a felonious intention to take the goods, and appropriate them to the offender's own use. * * * Now this intent is a question of fact, and must be submitted to the jury with such instructions from the court as the circumstances of each case may require.'

It was stated in State v. Deal, 64 N.C. 270, that 'If one takes the property of another, it is a mere trespass * * *; if manu forti, the owner being present, it is a forcible trespass. * * * If the taking be with a felonious intent, the act is larceny, either stealing, or robbery. So it turns upon the felonious intent. * * *'

In State v. Curtis, 71 N.C. 56, defendant was charged with robbery, and there was a special verdict. The facts found were equivocal on the question of intent. A new trial was ordered that a jury might find whether the taking was with a felonious intent. 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.'

State v. Burke, supra, turns on the questions of taking and asportation--intent is only indirectly involved. Defendant stopped the prosecuting witness on a road at night and accused the latter of having robbed him. When the prosecuting witness denied the accusation, defendant demanded money and by means of assault, threats and intimidation caused the prosecuting witness to give him a dollar. Defendant threw the money on the ground and said he would have to have seven dollars. After further effort to procure money defendant departed leaving the dollar on the ground. There was a prayer for special instructions which the trial judge refused to give. On appeal, this Court defined robbery according to the common law definition, and said: 'Unlike larceny, the gist of the offense in robbery is not in the taking but in the force and terror used. * * * Hence, when his Honor charged * * * that if the prisoner kept the money in his hands, 'one minute,' it was a sufficient taking * * *, he was supported by all of the authorities. ' We do not understand from the holding in this case that the taking and the...