State v. McNeely, 221
| Decision Date | 07 November 1956 |
| Docket Number | No. 221,221 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. William Robert McNEELY. |
Charles V. Bell, Charlotte, Peter H. Bell, Plymouth, for defendant-appellant.
Atty. Gen., George B. Patton, Asst. Atty. Gen., Claude L. Love, for the State.
The record of the case on appeal here presented discloses assignments of error substantially as follows:
Numbers 1 and 2 are directed to exceptions to two portions of the charge given to the jury. It is noted, however, that in brief filed in this Court neither of the exceptions to the designated portions of the charge is set out by appellant, nor is reason or argument stated or authority cited in support of them. Hence the assignments of error are taken as abandoned by appellant. Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562. Nevertheless, reading the charge as a whole, prejudicial error in the portions covered by the exceptions is not made to appear.
Number 3 is based upon Exception No. 3 to the action of the court 'in failing to charge the jury on the law applicable to the case as required by G.S. § 1-180' in five particulars:
(a) As the law applies to an attempt to commit robbery. In North Carolina it is provided by statute, G.S. § 15-170, that 'upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.' In accordance with this statute, and in the light of the evidence in the case, the trial judge ruled that the only issue in the case was whether or not defendant was guilty of an attempt to commit common-law robbery. While the judge did not define in detail what is meant by 'an attempt to commit robbery,' the language used is accordant with ordinary meaning of the word attempt, and is clearly understandable. State v. Jones, 227 N.C. 402, 42 S.E.2d 465. Indeed, defendant was not contesting the meaning of the term.
(b) and (c): As to assault, and as to the return of verdict of assault or simple assault: The principle upon which a defendant may be convicted of a less degree of the crime charged in the bill of indictment applies only where there is evidence of guilt of a less degree. State v. Spain, 201 N.C. 571, 160 S.E. 825. Here the trial judge ruled that under the evidence in the case defendant was guilty, if at all, of an attempt to commit common-law robbery. And where all the evidence tends to show that the crime of an attempt to commit common-law robbery, a lesser degree of the crime alleged in the bill of indictment, and defendant relies upon another defense, and does not contend that he might be found guilty of a lesser degree of the crime, and introduces no evidence to that effect, and makes no request that the court instruct the jury thereon, the failure of the court to so instruct the jury will not be held for error. State v. Jackson, 199 N.C. 321, 154 S.E. 402.
(e) As to verdict of guilty as charged 'when * * * defendant was not charged with an attempt to commit robbery': As hereinabove stated a verdict of guilty of an attempt to commit robbery is permissible under a bill of indictment charging common-law robbery. G.S. § 15-170. 'It is the rule with us, both in civil and criminal actions,' as declared by Stacy, C. J., writing for the Court in State v. Whitley, 208 N.C. 661, 182 S.E. 338, 340, 'that a verdict may be given significance and correctly interpreted by reference to the pleadings, the facts in evidence, admission of the parties, and the charge of the court', citing State v. Snipes, 185 N.C. 743, 117 S.E. 500, and many other cases. See also Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493; Stewart v. Wyrick, 228 N.C. 429, 45 S.E.2d 764, and cases cited. Tested by this standard, it would seem that the verdict as recorded is responsive to the charge in the light of the evidence, and is sufficient to support the judgment.
Reverting to (d)--That the court committed error in pronouncing judgment on the verdict of the jury: In this connection this Court in State v. Hare, 243 N.C....
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State v. Hageman, 206A82
...has held that attempted burglary, State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949), attempted common law robbery, State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956), attempted armed robbery, State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964), and an attempt to commit a crime against ......
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