State v. Mull

• Decision Date: 01 November 1944
• Docket Number: 291.
• Citation: 31 S.E.2d 764,224 N.C. 574
• Parties: STATE v. MULL et al.
• Court: North Carolina Supreme Court

31 S.E.2d 764

224 N.C. 574

STATE v. MULL et al.

No. 291.

Supreme Court of North Carolina

November 1, 1944

Criminal prosecution tried upon indictment charging the defendants and another, with robbery with firearms in violation of G.S § 14-87.

The bill charges that on 6 October, 1943, the defendants committed an assault upon one Cleveland Whisenant with a pistol and shotgun, and 'did place him in bodily fear and endanger his life and did * * * rob him of the sum of two dollars in money, the property of the said Cleveland Whisenant, against the form of the statute in such case made and provided and against the peace and dignity of the State.'

The evidence on behalf of the State tends to show that on the night of 6 November, 1943, Cleveland Whisenant, accompanied by his two sons, stopped his automobile on a public road in Burke County to repair a punctured tire.

The defendants, also driving in a car, stopped some distance away, got out, and Lester Mull went forward, drew his pistol on Cleveland Whisenant and with threatening language demanded some gas or gas tickets. He was followed shortly by the other defendants, one of whom had a gun strapped on his back. Lester Mull then took Whisenant to a bridge nearby and got $2 from him. Upon their return Lester Mull said to Whisenant in the presence of the others; 'We need $1.00 more.' To this, Whisenant replied: 'I have already given you $2.00.' He further stated that he had no gas tickets or coupons; that he had to go to the Ration Board to get gas for the trip he was then on. Whereupon someone remarked: 'We better not take his tickets.' Soon thereafter Whisenant was assaulted and knocked to the ground. The defendants picked him up and put him in his car and searched his pockets. He died on the way to the hospital (not from the assault, but from natural causes or overexertion perhaps). The evidence also tends to show that Tom Keg Mull and Herman LaFevers had been drinking.

The deceased, who lived in Asheville, was in Burke County with his family to attend the funeral of his brother-in-law. He did not know the defendants.

There was evidence on behalf of the defendants tending to show that Berle Rector who ran away and has not been apprehended, and not Lester Mull, was the one who got the money.

Verdict As to Loy Rector, 'not guilty.' As to Tom Keg Mull, Herman LaFevers and Lester Mull, 'guilty of robbery with firearms as charged in the bill of indictment.'

Judgment: Imprisonment in the State's Prison for not less than five nor more than seven years.

The defendants appeal, assigning errors.

Harry McMullan, Atty. Gen. and Geo. B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

Russell Berry and S. J. Ervin, Jr., both of Morganton, for defendants.

STACY Chief Justice.

The only serious exception appearing on the record is the one addressed to the following excerpt from the charge:

'I instruct you that money is personal property; and I further instruct you that under the law as it applies, gas tickets or coupons are recognized as personal property, and that the taking of them is a breach of the statute as charged against the defendants.'

The alleged vice of this instruction is, that it enlarges upon or departs from the bill of indictment, which specifies the property taken as 'two dollars in money' and makes no reference to any gas tickets or coupons. In short, the defendants say they were charged with one offense, and under the court's instruction may have been convicted of another. State v. Harbert, 185 N.C. 760, 118 S.E. 6.

The State offers three suggestions in support of the charge and in reply to the criticism of the defendants: First, the exact description of the property is not material; secondly, there is no evidence of any gas tickets or coupons being taken; and, finally, the error in the charge, if any, is cured by the verdict which limits the taking to the 'two dollars in money' since it declares the defendants 'guilty of robbery with firearms as charged in the bill of indictment.'

Initially, it should be observed that the bill charges robbery from the...