State v. Lynch, 87

• Decision Date: 02 March 1966
• Docket Number: No. 87,87
• Citation: 146 S.E.2d 677,266 N.C. 584
• Parties: STATE of North Carolina v. Theodore E. LYNCH and Boyce Oliver Norris.
• Court: North Carolina Supreme Court

Page 677

146 S.E.2d 677

266 N.C. 584

STATE of North Carolina v. Theodore E. LYNCH and Boyce Oliver Norris.

No. 87.

Supreme Court of North Carolina.

March 2, 1966.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock, for the State.

B. B. Worsham, Asheville, for defendant appellant.

BOBBITT, Justice.

There was plenary evidence a 'colored boy' entered the Towne House Bakery, Biltmore Avenue, Asheville, apparently as a customer, on June 23, 1965, about 1:50 a. m.; that, after looking around briefly, he pulled 'a neckerchief' over his mouth, pointed a 'nickel-plate pistol' at Rita Bryant, age 19, who was employed as a cashier, and demanded 'the money out of the cash register'; that Miss Bryant 'handed him the cash drawer'; and that 'he took the bills,' 'took around $45.00,' and ran. Miss Bryant testified to the above facts but testified she did not know and could not identify the 'colored boy' who committed the robbery.

Arresting officers testified Lynch, shortly after his arrest on the night of June 23rd, made statements to the effect he had committed the robbery but that he had used 'a small toy gun, silver colored,' and that 'the lady gave him $29.00.'

Appellant assigns as error the court's denial of his motion for judgment as of nonsuit. He contends there is a fatal variance between the indictment and the proof in that the indictment charges the robbery occurred 'at and in and near the public highway' and that the money obtained was 'the property of the said RITA BRYANT' whereas the evidence tends to show a robbery on the premises of Towne House Bakery and that the money obtained was the propert of the Towne House Bakery.

'[T]he 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.' State v. Lawrence, 262 N.C. 162, 164, 136 S.E.2d 595, 597. The words 'at and in and near the public highway,' do not relate to essentials of the crime of robbery. These surplus words in the bill of indictment tend to indicate vaguely the location of the alleged robbery. The evidence tends to show the robbery occurred within a business establishment on Biltmore Avenue in Asheville. There is no variance between the crime charged and the proof, and the variation between the surplus words and the proof is without substantial significance.

Defendant cites State v. Cowan, 29 N.C. 239, decided at June 1847 Term, where, in a trial on an indictment charging 'robbery in the highway,' it was held it was not permissible to admit evidence of a robbery that occurred on a wharf near the public highway (a Wilmington street). Suffice to say, the present case is distinguishable in that the indictment here alleges the offense occurred 'at and in and near the public highway.' (Our italics.) This Court has upheld a conviction where the indictment charged the robbery occurred 'at and near a certain highway' and the evidence showed it occurred some 50 or 75 yards therefrom. State v. Nicholson, 124 N.C. 820, 32 S.E. 813.

It should be noted, as pointed out by Moore, J., in State v. Lawrence, supra, that '[u]ntil 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).'

As to the variance with reference to the ownership of the stolen money, it is noted that '[t]he gist of the offense (robbery) is not the taking, but a taking by force or the putting in fear.' State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37, and cases cited. As stated by Winborne, J. (later C. J.), in State v. Sawyer, supra: '[I]n an indictment for robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property.' 'It is not essential to the crime of robbery that the property be taken from the actual holder of the legal title, a taking from one having the care, custody, control, management, or possession of the property being sufficient.' 77 C.J.S. Robbery § 7; 46 Am.Jur., Robbery § 9.

The court properly overruled appellant's motion for judgment as in case of nonsuit.

The only evidence tending to identify Lynch as the 'colored boy' who entered Towne House Bakery and robbed Rita Bryant consists of testimony as to an oral confession by Lynch and of testimony as to an oral and as to a written confession by Norris. Evidence of persons passing in cars at or near the time of the robbery tends to show the boy or boys they saw in the vicinity of Towne House Bakery were smaller and younger than Lynch and Norris. It is noted all confessions attributed to Norris are to the effect Lynch was the actual perpetrator of the robbery and that Norris was waiting in an alley nearby and was given part of the money.

When a witness (officer) for the State testified to the oral confession of Norris, the court, upon objection by counsel for Lynch, instructed the jury this testimony was not for consideration as to Lynch; and when he testified to the confession of Lynch, the court, upon objection by counsel for Norris, instructed the jury this testimony was not for consideration as to Norris. While the State was offering evidence, there was no objection on the ground either confession was involuntary.

After the State had rested, Lynch testified he did not enter the Towne House Bakery or have any connection with the alleged robbery; and that, although offered inducements to do so, he had made no statement that he was involved...