State v. Young

• Court: North Carolina Court of Appeals
• Writing for the Court: ROBERT M. MARTIN; HARRY C. MARTIN; BECTON; BECTON
• Citation: State v. Young, 54 N.C.App. 366, 283 S.E.2d 812 (N.C. App. 1981)
• Decision Date: 03 November 1981
• Docket Number: No. 8110SC196,8110SC196
• Parties: STATE of North Carolina v. Robert Edward YOUNG.

Page 812

283 S.E.2d 812

54 N.C.App. 366

STATE of North Carolina v. Robert Edward YOUNG.

No. 8110SC196.

Court of Appeals of North Carolina.

Nov. 3, 1981.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Michael Rivers Morgan, Raleigh, for the State.

Asst. Appellate Defender Marc D. Towler, Adam Stein, Appellate Defender, Raleigh, for defendant-appellant Robert Edward Young.

ROBERT M. MARTIN, Judge.

The defendant first argues that his conviction for larceny from the person is invalid because that offense is not a lesser included offense of common law robbery governed by N.C.Gen.Stat. § 15-170. We disagree.

While larceny from the person does carry the same penalty as common law robbery, the North Carolina courts have treated larceny from the person as a lesser included offense. See State v. McLawhorn, 43 N.C.App. 695, 260 S.E.2d 138 (1979), disc. rev. denied 299 N.C. 123, 261 S.E.2d 925 (1980). In State v. Kirk, 17 N.C.App. 68, 193 S.E.2d 377 (1972), the prosecuting witness was working as a gas station attendant one night, and while pumping gas for a customer, the customer exited his car, went behind the prosecuting witness, removed a billfold containing money from the prosecuting witness' hip pocket, and ran down the street. The victim called the wrongdoer to stop, but to no avail. The Court expressly stated that larceny from the person is a lesser included offense of common law robbery. Id. at 70, 193 S.E.2d 379. Thus defendant's assignment of error is without merit and is overruled.

The defendant next contends that the trial judge erroneously admitted into evidence testimony that defendant identified himself to police by giving two false names following his arrest. The defendant argues that (1) his utterance was the product of an unlawful arrest made pursuant to an arrest warrant which did not adequately identify the defendant and (2) testimony concerning this utterance was erroneously admitted because of the absence of a showing that defendant had been informed of his Miranda rights prior to making the statement.

Considering the first contention, it is true that a warrant must clearly and positively identify the person charged with the commission of an offense. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). Nonetheless a description of an accused in a warrant by whatever alias names he may have been known to use, if done in good faith, is proper. State v. Culp, 5 N.C.App. 625, 169 S.E.2d 10 (1969). In this case none of the State's witnesses knew the defendant's real name at the time of arrest. Danny Sanders, however, did identify the defendant as the thief but mistakenly believed the defendant's nickname to be "Shank." Accordingly the arrest warrant was issued for "Shank" while the defendant's nickname was "Chink."

The names "Chink" and "Shank" sound sufficiently similar to invoke the doctrine of idem sonans. The doctrine of idem sonans has been applied in the North Carolina cases of State v. Sawyer, 233 N.C. 76, 62 S.E.2d 515 (1950), where there was a variance between the defendant's name "Sawyer" and the name of "Swayer" which appeared in the warrant, and State v. Vincent, 222 N.C. 543, 23 S.E.2d 832 (1943), where the defendant's actual name was "Vincent," yet the name "Vinson" appeared in the indictment. In both of these cases, the Supreme Court noted that the respective defendants could not be heard to claim that they were not adequately identified in the arrest warrants at issue. Furthermore, the defendant waived any objection to the misnomer appearing in the warrant by pleading not guilty and going to trial on the merits of the case. State v. Sawyer, supra; State v. Ellis, 200 N.C. 77, 156 S.E. 157 (1930).

In addition the defendant argues that his statement was improperly admitted in light of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings are only required when a defendant is being subjected to custodial interrogation. State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). The mere asking of the defendant's name did not constitute interrogation. Thus no Miranda warnings were required.

In State v. Phillips, 37 N.C.App. 202, 245 S.E.2d 587 (1978), a police officer's inquiry as to whether an arrested defendant knew "what was going on" did not constitute custodial interrogation. Similarly, other jurisdictions have ruled that the preliminary questions asked during the booking procedure such as name, address, place of employment, age and other routine background inquiries did not constitute custodial interrogation. People v. Hernandez, 263 Cal.App.2d 242, 69 Cal.Rptr. 448 (1968), People v. McIntosh, 53 Ill.App.3d 958, 11 Ill.Dec. 763, 369 N.E.2d 217 (1977), Clarke v. State, 3 Md.App. 447, 240 A.2d 291 (1968).

We do not think that testimony concerning defendant's false identification was improperly admitted. Even if there had been error in the admission of the statement, it would not have been prejudicial since there is no reasonable possibility that it would have contributed to Young's conviction. We believe that the admission of the statement if erroneous would have been harmless beyond a reasonable doubt. State v. Fletcher and State v. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). Defendant's assignments of error are without merit and are overruled.

The defendant also alleges that the admission of evidence relating to the street price of marijuana was error in that the evidence was irrelevant and prejudicial. This contention is totally without merit.

The State's evidence tended to show that the defendant unlawfully took fifty dollars from the person of James Blue. The defense, on the other hand, tried to prove that Blue had arranged to buy a half-pound of marijuana from the defendant for the price of sixty dollars and that when the defendant failed to deliver the drugs, Blue instituted a false robbery claim. Thus the defendant placed the drug issue before the jury and the State's rebuttal evidence concerning the price of a half-pound of marijuana was appropriate. That evidence served to aid the jury in deciding the ultimate question in this case--which party's version of the facts was true. Consequently, this assignment of error is without merit and is overruled.

The defendant-appellant's final contention is that the indictment which charged him with the offense of common law robbery was insufficient to support his conviction of the offense of larceny from the person because the indictment did not contain the express allegations that the property was taken with intent to steal, and was taken against the victim's will or without his consent. The indictment read as follows:

"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 22nd day of September, 1980, in Wake County Robert Edward Young did unlawfully, wilfully, and feloniously make an assault on James Blue and did put him in bodily fear and danger of his life, and then and there did unlawfully, wilfully, feloniously, forcibly, and violently take, steal, and carry away $50 in United States currency of the value of $50 dollars, from the person and possession of the said James Blue."

It is not required that an indictment charging the felonious taking of goods from the person of another by the use of force aver that the taking was with the intent to convert the personal property to the defendant's own use, for the question of specific intent would properly be submitted to the jury under the charge. State v. Williams, 265 N.C. 446, 144 S.E.2d 267 (1965); State v. Frietch, 8 N.C.App. 331, 174 S.E.2d 149 (1970). Furthermore, the judge expressly charged the jury that the taking must be without the victim's consent. Consequently, this assignment of error is overruled.

For the foregoing reasons, we find in defendant's trial

No error.

HARRY C. MARTIN, J., concurs.

BECTON, J., dissents.

BECTON, Judge, dissenting:

I have neither an aversion to, nor am I unmindful of, the holdings of our courts that larceny from the person is a lesser included offense of common law robbery, since the latter is an aggravated species of the former. ¹ However, believing that due process rights are implicated and further believing that it is inherently unfair to submit to the jury the charge of larceny from the person as a lesser included offense of common law robbery since the allowable punishment for the two crimes is the same, I dissent. The due process question, which the defendant raised, was not addressed by the majority, and, apparently, has not been addressed by our courts. Stating my position differently and setting forth the basis for my dissent in the face of seemingly controlling authority, I quote our Supreme Court in State v. Hale, 231 N.C. 412, 414, 57 S.E.2d 322, 323-24 (1950):

[I] have not overlooked the cases in which seemingly similar instructions have been upheld, but in none of the cases so far examined was the question here debated presented or decided.

The doctrine of lesser included offenses was initially designed to assist the prosecutor; society deemed it unfair that a defendant could be acquitted simply because the prosecutor failed to establish all of the elements of the crime charged. ² Now, however, the defendant shares the benefit of the doctrine. For example, if there is a genuine conflict in the evidence, a defendant is entitled to a charge on the lesser included offense. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924).

The following general principles govern the submission of any lesser included offense to the jury. "To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser." Giles v. United States, 144 F.2d 860, 861 (9th Cir. 1944), quoting House v. State, 186 Ind. 593, 117 N.E. 647 (1917). Or, as stated in State v. Riera, 276 N.C. at 368, 172 S.E.2d at 540:

[W]hen a...