State v. Smith, 90
Citation | 150 S.E.2d 194,268 N.C. 167 |
Decision Date | 28 September 1966 |
Docket Number | No. 90,90 |
Court | United States State Supreme Court of North Carolina |
Parties | STATE v. Sylvester SMITH. |
T. W. Bruton, Atty. Gen., and James F. Bullock, Asst. Atty. Gen., for the State
A. Louis Singleton, Greenville, for defendant appellant.
Defendant makes two assignments of error: (1) the refusal of the court to dismiss the charges against him upon his motions for nonsuit, and (2) the failure of the court to instruct the jury that they might acquit him of the crime of armed robbery charged in the indictment and convict him of an assault with a deadly weapon upon Adams. G.S. § 15--169. The first assignment requires no discussion. The factual statement reveals evidence plenary to convict defendant of the charges contained in both bills of indictment. The gist of defendant's appeal is his second assignment of error.
The question presented is this: Assuming the truth of the State's evidence, does it show that the offense committed upon Adams was the robbery with firearms alleged in the indictment? If the circumstances disclosed here would permit the inference that defendant took the rifle without felonious intent, it would have been the duty of the judge to submit to the jury the lesser and included offense of assault. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410; State v. Holt, 192 N.C. 490, 135 S.E. 324. If there could be any other inference, however, the judge would not be under such a duty. State v. Fletcher, 264 N.C. 482, 141 S.E.2d 873; State v. Parker, 262 N.C. 679, 138 S.E.2d 496; State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; State v. Cox, 201 N.C. 357, 160 S.E. 358.
Robbery, a common-law offense not defined by statute in North Carolina, is merely an aggravated form of larceny. State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595. The use, or threatened use, of firearms or other dangerous weapons in perpetrating a robbery 'does not add to or subtract from the common-law offense of robbery,' but the statute (G.S. § 14--87) provides a more severe punishment for a robbery attempted or accomplished with the use of a dangerous weapon. State v. Chase, 231 N.C. 589, 58 S.E.2d 364. Robbery is "the taking, with intent to steal, of the personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation." State v. Lunsford, supra at 231, 49 S.E.2d at 412. The taking must be done Animo furandi, with a felonious intent to appropriate the goods taken to some use or purpose of the taker. The intent to convert to one's own use, however, 'is met by showing an intent to deprive the owner of his property permanently for the use or purposes of the taker, although he might have in mind to benefit another.' State v. Kirkland, 178 N.C. 810, 813, 101 S.E. 560, 562. Rapalje, Larceny & Kindred Offenses § 20 (1892); Annot: 18 Am. & Eng.Ann.Cas. 824 (1911). State v. Sowls, 61 N.C. 151, 153--154. Accord, State v. Spratt, 265 N.C. 524, 144 S.E.2d 569. See David J. Sharpe, Forcible Trespass to Personal Property, 40 N.C.L.Rev. 252 (1961).
In robbery, as in larceny, the taking of the property must be with the felonious intent Permanently to deprive the owner of his property. State v. McCrary, 263 N.C. 490, 139 S.E.2d 739; State v. Lawrence, supra; State v. Lunsford, supra; 46 Am.Jur., Robbery § 10 (1943); 32 Am.Jur., Larceny § 37 (1941). Thus, if one disarms another in self-defense with no intent to steal his weapon, he is not guilty of robbery. State v. Lunsford, supra. If he takes another's property for the taker's immediate and temporary use with no intent permanently to deprive the owner of his property, he is not guilty of larceny. State v. McCrary, supra. See 2 Bishop, Criminal Law (9th Ed.) §§ 840--852 (1923).
Defendant here clearly intended to appropriate the rifle to a use inconsistent with its owner's property rights. Assuming that defendant's immediate purpose was to deprive Adams of a weapon so Adams could not use it against him or prevent his escape, still this is not in the least inconsistent with an intent permanently to deprive Adams of his rifle. The narrow question here is whether the circumstances under which defendant took the rifle are susceptible to the inference that he had any intent other than that of permanently depriving Adams of the weapon.
In State v. Davis, 38 N.J.Law 176, 20 Am.Rep. 367, the defendant Davis took a horse and carriage which was standing in front of a residence and drove it rapidly away near midnight. The next day, when detection became imminent, Davis abandoned the horse and carriage several miles from where it was taken. The horse was exhausted from much driving and want of food. Davis had made no effort to return the property or to apprise its owner where his property could be found. In holding defendant guilty of larceny, the court said with reference to his taking:
Id. 38 N.J.Law at 178, 20 Am.Dec. at 369.
The severe punishment of felonies under the old English law, as the opinion in State v. Davis, supra, pointed out, led to some decisions contra. In Philipps and Strong's Case, 2 East, Pleas of the Crown, 662, the defendants were indicted for stealing a mare and a gelding from one Goulter, who kept an inn. They took the animals and rode them to Lechlade, 33 miles away. There, they left them at different inns to be fed and cleaned for their return in three hours. They did not return and were later arrested 14 miles away while walking towards Farringdon. The jury, upon a special verdict, found that when defendants took the horses, they merely intended to ride them to Lechlade, to leave them there, and to make no further use of them.
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