State v. Stewart
| Decision Date | 01 November 1961 |
| Docket Number | No. 292,292 |
| Citation | 122 S.E.2d 355,255 N.C. 571 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Woodrow STEWART. |
T. W. Bruton, Atty. Gen., and George A. Goodwyn, Staff Atty., Raleigh, for the State.
Woodrow Stewart, pro se.
Petitioner Woodrow Stewart was tried in case No. 38 of the criminal docket of Watauga County Superior Court at the September Term 1945, Gwyn, J., presiding. It is charged in the bill of indictment in that case that Woodrow Stewart and another on 27 July 1945 'unlawfully, wilfully and feloniously, at and in and near the public highway, did commit an assault upon one H. J. Teague, with a deadly weapon, to wit, a club and by means aforesaid and by threats of violence did steal, take and carry away from his person and did rob him, the said H. J. Teague, of the sum of $718, the property of the said H. J. Teague.' The court minutes for that term show the following: Petitioner was committed to serve the sentence thus imposed.
In September 1961 Stewart petitioned for writ of habeas corpus and alleged that the sentence imposed is excessive as a matter of law and requested that he be discharged. The petition was heard by Gambill, J., 13 September 1961 at chambers. Judge Gambill ruled that 'the punishment of not less than 18 nor more than 20 years * * * is not excessive * * * within the purview of' G.S. § 14-87.
Highway robbery is a common law offense and is frequently denominated 'common law robbery.' Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Burke, 73 N.C. 83. It is punishable by imprisonment in the State's prison for a term not to exceed 10 years. G.S. § 14-2. In re Sellers, 234 N.C. 648, 68 S.E.2d 308, 310.
G.S. § 14-87, entitled 'Robbery with firearms or other dangerous weapons,' creates no new offense. 'It does not add to or subtract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense, more severe punishment may be imposed.' State v. Hare, 243 N.C. 262, 90 S.E.2d 550; In re Sellers, supra; State v. Keller, 214 N.C. 447, 199 S.E. 620; State v. Chase, 231 N.C. 589, 58 S.E.2d 364; State v. Bell, supra. It 'superadds to the minimum essentials of common-law robbery the additional requirement that the robbery must be committed 'with the use or threatened use of * * * firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened.' ' State v. Rogers, 246 N.C. 611, 99 S.E.2d 803, 804. To support a judgment imposing a prison term in excess of ten years the bill of indictment must allege facts sufficient to bring the case within this 'additional requirement' and in accord with the tenor and substance of G.S. § 14-87.
The bill of indictment in case No. 38 upon which petitioner was tried is sufficient to support a plea or conviction of highway robbery, for the facts alleged are sufficient to charge robbery by intimidation or violence, which is the gist of common law robbery. State v. Mull, 224 N.C. 574, 31 S.E.2d 764; State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; State v. Burke, supra. But it does not allege that the life of a person was endangered or threatened by the use or threatened use of a dangerous weapon, instrument or means. Compare the indictment herein with those in State v. Kerley, 246 N.C. 157, 97 S.E.2d 876, and State v. Mull, supra. It is our opinion that the indictment does not contain the additional allegations required in order to permit the more severe punishment provided for in G.S. § 14-87.
But even if the indictment had charged the offense in accordance with G. S. § 14-87, there is a further reason that the punishment may not exceed a term of 10 years in this case. The court minutes show that petitioner pleaded guilty to highway robbery. And highway robbery is a lesser offense embraced in the charge of robbery with firearms or other dangerous weapon. State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Bell, supra. Upon a plea of highway robbery the court may not change the effect of the plea by finding facts and thereby expose defendant to greater punishment than the plea will support.
In pronouncing judgment the court was bound by the...
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State v. Mann
...in fear. State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); State v. Stewart, 255 N.C. 571, 122 S.E.2d 355 (1961). It is a crime against the person, effectuated by violence or intimidation. State v. Rivens, 299 N.C. 385, 261 S.E.2d 867......
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State v. Nicholson
...or putting him in fear.’ " State v. Carter , 186 N.C. App. 259, 262, 650 S.E.2d 650, 653 (2007) (quoting State v. Stewart , 255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961) ). " ‘It is not necessary to prove both violence and putting in fear-proof of either is sufficient.’ " Id. at 262, 650 S.......
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State v. Rogers, 247
...new offense, but provides that when firearms or other dangerous weapons are used, more severe punishment may be imposed. State v. Stewart, 255 N.C. 571, 122 S.E.2d 355. However, it is noted that the two crimes differ in that there must be an actual taking of property for there to be the cri......
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State v. Rivens, 100
...the robbery more severe punishment may be imposed. G.S. 14-87(a) (Cum.Supp.1979); See, State v. Smith, supra; State v. Stewart, 255 N.C. 571, 122 S.E.2d 355 (1961). Common law robbery is a lesser included offense of armed robbery. When evidence of common law robbery is present in the case, ......