State v. Hurst

359 S.E.2d 776, 320 N.C. 589
CourtSupreme Court of North Carolina
DecidedSeptember 3, 1987
Docket513PA86
StatusPublished

This text of 359 S.E.2d 776 (State v. Hurst) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hurst, 359 S.E.2d 776, 320 N.C. 589 (N.C. 1987).

Opinion

359 S.E.2d 776 (1987)
320 N.C. 589

STATE of North Carolina
v.
Charles Alfred HURST.

No. 513PA86.

Supreme Court of North Carolina.

September 3, 1987.

*777 Lacy H. Thornburg, Atty. Gen. by Newton G. Pritchett, Jr., Asst. Atty. Gen., Raleigh, for the State.

James R. Parish, Fayetteville, for defendant-appellee.

WEBB, Justice.

We have allowed discretionary review to determine whether the defendant in this case may be convicted and sentenced for both armed robbery and felonious larceny when both charges are based on the same incident. The Court of Appeals held the defendant could not be so convicted and arrested the judgment of felonious larceny. We believe that State v. Murray, 310 N.C. 541, 313 S.E.2d 523 (1984); State v. Beaty, 306 N.C. 491, 293 S.E.2d 760 (1982); and State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980), require that we reverse the Court of Appeals. Each of these cases holds or says that felonious larceny is not a lesser included offense of armed robbery.

In its opinion the Court of Appeals, relying on State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986), analyzed some of our cases dealing with the question of whether felonious larceny is a lesser included offense of armed robbery. The court did not reach a conclusion as to this question because it did not feel it was necessary to do so. It based its holding on the conclusion that the Legislature did not intend that the defendant be punished for both crimes. In reaching this conclusion, the Court of Appeals relied on some language from State v. McGill, 296 N.C. 564, 568, 251 S.E.2d 616, 619 (1979), which says, "[m]ultiple punishment is one facet of the prohibition against double jeopardy.... That rule applies `[w]here two or more offenses of the same nature are by statute carved out of the same transaction and are properly the subject of a single investigation.'" McGill dealt with a question of whether the State should have been required to elect between two separate charges upon which to prosecute the defendant. The quoted language was not necessary to a decision in the case. It does appear that if the language in McGill is the law, a defendant may not be punished for more than one offense if two or more offenses created by statute arise from one transaction and are properly the subject of one investigation. In State v. Pagon, 64 N.C.App. 295, 307 S.E.2d 381 (1983), the Court of Appeals decided a case based on this language. We do not believe this is a correct statement of the law. There are many instances in which a defendant may be punished for more than one crime based on one transaction including Gardner, Murray and Revelle which we have cited above. We shall cite others in this opinion.

Gardner, 315 N.C. 444, 340 S.E.2d 701, deals with the question of whether a defendant who is convicted of two separate crimes, may be sentenced for both of them if one of the crimes is a lesser included offense of the other. If a defendant is convicted of two crimes based on the same incident and neither crime is a lesser included offense of the other, he may be sentenced for both crimes. Murray, 310 *778 N.C. 541, 313 S.E.2d 523 and State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979). If felonious larceny is not a lesser included offense of armed robbery, it was not error to sentence the defendant in this case for both offenses and Gardner has no application. As the Court of Appeals points out, there appears to be a conflict between two lines of cases in this state as to whether felonious larceny is a lesser included offense of armed robbery. See also Braun, Lesser Included Offenses: A New Piece In The Puzzle, Campbell Law Observer, June 26, 1987, at 1. The following cases hold or say that felonious larceny is a lesser included offense of armed robbery. State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971); State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 91 S.Ct. 2199, 29 L.Ed.2d 428 (1971); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964); State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959); State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955); State v. Bell, 228 N.C. 659, 46 S.E.2d 834 (1948); State v. Horne, 59 N.C.App. 576, 297 S.E.2d 788 (1982); State v. Reid, 55 N.C.App. 72, 284 S.E.2d 519 (1981); State v. Chapman, 49 N.C.App. 103, 270 S.E.2d 524 (1980); State v. Allen, 47 N.C.App. 482, 267 S.E.2d 514 (1980); State v. Perry, 38 N.C.App. 735, 248 S.E.2d 755 (1978); State v. Fletcher, 27 N.C.App. 672, 220 S.E.2d 101 (1975); State v. Coxe, 16 N.C.App. 301, 191 S.E.2d 923 (1972). On the other hand, Murray, Beaty and Revelle hold or say that felonious larceny is not a lesser included offense of armed robbery.

An offense is a lesser included offense when all its essential elements are included in the greater offense and proof of all elements in the greater offense will prove all elements of the lesser offense. State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982). Armed robbery is defined by N.C.G.S. § 14-87 as

(a) Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

An armed robbery can occur when the defendant attempts to take property from another with the use of a firearm or other dangerous weapon. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971). N.C.G.S. § 14-72 deals with larceny.

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Related

State v. Perry
248 S.E.2d 755 (Court of Appeals of North Carolina, 1978)
State v. Pagon
307 S.E.2d 381 (Court of Appeals of North Carolina, 1983)
State v. Gardner
340 S.E.2d 701 (Supreme Court of North Carolina, 1986)
State v. Coxe
191 S.E.2d 923 (Court of Appeals of North Carolina, 1972)
State v. Parker
138 S.E.2d 496 (Supreme Court of North Carolina, 1964)
State v. Price
184 S.E.2d 866 (Supreme Court of North Carolina, 1971)
State v. Fletcher
220 S.E.2d 101 (Court of Appeals of North Carolina, 1975)
State v. Wenrich
111 S.E.2d 582 (Supreme Court of North Carolina, 1959)
State v. Goodman
257 S.E.2d 569 (Supreme Court of North Carolina, 1979)
State v. Revelle
270 S.E.2d 476 (Supreme Court of North Carolina, 1980)
State v. Chapman
270 S.E.2d 524 (Court of Appeals of North Carolina, 1980)
State v. Hurst
346 S.E.2d 8 (Court of Appeals of North Carolina, 1986)
State v. Hatcher
177 S.E.2d 892 (Supreme Court of North Carolina, 1970)
State v. Allen
267 S.E.2d 514 (Court of Appeals of North Carolina, 1980)
State v. Owens
178 S.E.2d 442 (Supreme Court of North Carolina, 1971)
State v. Swaney
178 S.E.2d 399 (Supreme Court of North Carolina, 1971)
State v. Murray
313 S.E.2d 523 (Supreme Court of North Carolina, 1984)
State v. Beaty
293 S.E.2d 760 (Supreme Court of North Carolina, 1982)
State v. Davis
87 S.E.2d 906 (Supreme Court of North Carolina, 1955)
State v. Weaver
295 S.E.2d 375 (Supreme Court of North Carolina, 1982)

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359 S.E.2d 776, 320 N.C. 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hurst-nc-1987.