State v. Thompson

• Decision Date: 17 May 1979
• Docket Number: No. 41,41
• Citation: 254 S.E.2d 526,297 N.C. 285
• Parties: STATE of North Carolina v. James THOMPSON
• Court: North Carolina Supreme Court

Page 526

254 S.E.2d 526

297 N.C. 285

STATE of North Carolina v. James THOMPSON

No. 41.

Supreme Court of North Carolina.

May 17, 1979.

Rufus L. Edmisten, Atty. Gen. by T. Buie Costen, Special Deputy Atty. Gen. and Nonnie F. Midgette, Asst. Atty. Gen., Raleigh, for the State.

Tate K. Sterrett, Charlotte, for defendant-appellee.

BRANCH, Justice.

Defendant contended before the Court of Appeals and contends here that the trial court erred in failing to charge upon and submit to the jury an issue as to defendant's guilt or innocence of the lesser included offense of common law robbery. This contention is the principal and decisive question before us. In granting a new trial, the majority of the Court of Appeals relied upon the case of State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971), Cert. denied, 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218. In his dissent, Judge Erwin reasoned that there was no evidence of probative value before the court on the lesser included offense of common law robbery.

In State v. Bailey, supra, Loretta Williams testified that on the afternoon of 23 March 1970, defendant came to her place of employment at One Hour Valet Cleaners in Raleigh, North Carolina, armed with a pistol and by the threatened use of that weapon forced her to give him $84 from the cash register. On cross-examination, she stated, "I don't know whether it was a real or toy pistol or whether it was metal or rubber." The State also offered evidence of a confession by defendant in which he admitted that he committed the robbery.

Defendant's evidence was to the effect that on the day of the robbery he had been drinking wine and shooting heroin. He "passed out" at about noon and remembered nothing about a robbery. He recalled making the confession and testified that he made it because of continual questioning by the police officers. He did not recall that he was warned of his "Miranda rights" prior to making the confession.

The jury returned a verdict of guilty as charged, and defendant appealed from judgment entered. The appeal was brought to this Court pursuant to an existing general referral order entered by the court effective 1 August 1970.

On appeal, defendant, Inter alia, assigned as error the failure of the trial court to submit the lesser included offense of common law robbery. In sustaining this assignment of error, we, in part, stated:

Common law robbery is a lesser included offense of armed robbery, and an indictment for armed robbery will support a conviction for common law robbery. When there is evidence of defendant's guilt of common law robbery, it is error for the court to fail to submit the lesser offense to the jury. State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582; State v. Davis, 242 N.C. 476, 87 S.E.2d 906; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Keller, 214 N.C. 447, 199 S.E. 620.

The critical and essential difference between armed robbery and common law robbery is that in order for the jury to convict for armed robbery the victim must be endangered or threatened by the use or threatened use of a "firearm or other dangerous weapon, implement or means."

Applying the above-stated, well established rules, we held that there was a conflict in the testimony which raised an issue for the jury as to whether defendant used or threatened to use a firearm or other dangerous weapon to perpetrate the robbery.

In instant case, Myra Wright testified that the shot gun was held to her forehead and that it "felt like cold metal." On cross-examination, she stated that "she did not know whether the shotgun was a real gun, a fake gun, a toy gun or what kind of gun, it was metal and did not look like a toy."

Beverly Shinn testified that defendant had a gun in his hand and that it looked like a chrome pistol; that the weapon was held to her stomach; and that "it was...