State v. Lunsford

• Decision Date: 22 September 1948
• Docket Number: 75
• Citation: 49 S.E.2d 410,229 N.C. 229
• Parties: STATE v. LUNSFORD.
• Court: North Carolina Supreme Court

49 S.E.2d 410

229 N.C. 229

STATE v. LUNSFORD.

No. 75

Supreme Court of North Carolina

September 22, 1948

The defendants were charged with robbery.

It was made to appear at the trial by the evidence of the State and that of the defendants that the defendants met the prosecuting witness, Jack Maney, for the first time at the Amos and Andy Cafe on the Weaverville highway in Buncombe County about four o'clock on the afternoon of Saturday July 10, 1948; that Maney was armed with a pistol; that the defendant Lunsford seized and held Maney while the defendant Sawyer took the pistol from him; that Sawyer then delivered the pistol to Lunsford, who carried it away against the wishes of Maney; that Lunsford was arrested at his home on the following day on the charge of robbing Maney of the pistol; and that Lunsford then and there surrendered the pistol to the arresting officers.

The testimony of the State and that of the defendants diverged radically, however, with respect to the events preceding and accompanying the taking of the pistol. The State's sole evidence on this phase of the case came from the prosecuting witness Maney. He said: 'We had a friendly conversation no hard words anyway. I had a German semi-automatic pistol and I showed it to some of the boys in the front part of the restaurant before I went in the rest room. I don't know whether I showed it direct to these defendants. I did not point it at anybody or anything. After that I went into the rest room at the back. The defendants were in there. One of them grabbed me from behind and the other took the gun out of my right hand pocket. It was Lunsford that grabbed me from behind. Sawyer took the pistol from me.'

The other version of the affair was given by the defendants and their witness, Waldo Davis. The defendant Lunsford testified as follows: 'The first time I saw Jack Maney he got out of his car and came in front of the restaurant. He pulled a pistol out of his pocket and was pointing it at an empty can. He did not shoot, but he acted like he was going to. He was intoxicated. Later, inside the restaurant, Jack Maney was drinking beer and showing the pistol around. * * * Earl Sawyer and I went into the rest room, and Waldo Davis and someone was already in there. * * * Jack Maney came in and pushed me to one side. I told him not to push me, * * *. He said something to me, and we had some words. He jerked this pistol out of his front pocket and pointed it at me. I grabbed his arm to keep him from shooting me and Earl Sawyer took the pistol out of his hand. He was mad about it and wanted his gun, but I told him he was in no condition to have the gun, and I did not want him to shoot me or anybody else. Earl Sawyer told him that we would leave the gun there at the restaurant and he could get it on Monday. * * * I did not want the pistol and did not intend to keep it, but only took it to keep him from shooting me. ' The testimony of the defendant Sawyer and the witness Davis coincided with that of Lunsford. Sawyer expressly stated that he took the pistol from Maney 'for the sole purpose of preventing him from shooting Paris Lunsford.'

The jury found both of the defendants guilty of robbery 'as charged in the bill of indictment. ' From judgment based on this verdict, the defendants appealed, assigning errors.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Don C Young, of Asheville, for defendants, appellants.

ERVIN, Justice.

The defendants emphasize their exceptions to the charge. They insist, among other things, that the trial judge erred in failing to instuct the jury as to the felonious intent essential to the crime of robbery, and in restricting the...