State v. . Keller

199 S.E. 620, 214 N.C. 447, 1938 N.C. LEXIS 372

• Court: Supreme Court of North Carolina
• Decided: November 23, 1938
• Status: Published

Opinion

WiNBORNE, J.

Defendants’ exceptive assignment is well taken to the refusal of the court below to give in form or in substance this request for instruction: “Before the defendants, or either of them, be found guilty of larceny by the threat of using firearms or other weapons, it would be necessary for it to be found that not only was there a threat of the use of a pistol or weapon of some sort but that actually such pistol or other weapon was at the time in the possession of the defendants or one of them at the time of the threat being made, or at the time the alleged assault and larceny was being consummated.”

Defendants are indicted under chapter 187 of Public Laws of 1929, entitled “An act making robbery with firearms or other dangerous weapons, implements or means whereby the life of a person is endangered or threatened, a felony.” Sec. 1, in part, reads: “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 who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony . . .”

Under proper construction of this statute, can a defendant be found guilty thereunder without the presence of “firearms, or other dangerous weapons, implements or means whereby the life of a person is endangered or threatened”? The title and context of the act lead us to say “No.”

If the meaning of the statute be in doubt, reference may be had to the title and context as legislative declarations of the purpose of the act. S. v. Woolard, 119 N. C., 779, 25 S. E., 719; Machinery Co. v. Sellers, 197 N. C., 30, 147 S. E., 674; Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278.

In S. v. Woolard, supra, Clark, J., said: “. . . the title is part of the bill when introduced, being placed there by the author, and probably attracts more attention than any other part of the proposed law, and if it passes into law tbe title thereof is consequently a legislative declaration of tbe tenor and object of tbe act. . . . Consequently, wben tbe meaning of an act is at all doubtful, all tbe authorities now concur that tbe title should be considered.”

Applying these principles and considering tbe wording of tbe title to tbe act in question, it is manifest that tbe Legislature bad in mind robbery accomplished with firearms, or other dangerous weapons, implements or means whereby tbe life of a person is endangered or threatened. “With” in tbe connection in which it is employed indicates “causal connection; by or through tbe means of; through; as, to defend himself with a club” — Webster. Defense with a club implies the presence of a club. In like manner, robbery with firearms of necessity requires as a constituent element the presence of firearms.

This is consonant with the meaning of the clause in sec. 1, which reads: “With the use or threatened use of any firearms.” In this connection the word “use” as a noun has the meaning of an “act of employing anything, or state of being employed; application; employment; as, the use of a pen; his machines are in use,” and may signify the “method or way of using” — Webster. The words “threatened use” coupled, as they are, with the preceding words clearly indicate the threatened act of employing. Hence, construed contextually the clause “with the use or threatened use” of a weapon, requires, in the one instance, or presupposes, in the other, the presence of the weapon with which the act may be executed or threatened.

Then reading together the title and text of the act, the title clearly expresses the intent and purpose of the Legislature to provide for more severe punishment for the commission of robbery with firearms, and other specified weapons, than is prescribed for common law robbery. And in this connection it is well to note that the court failed to charge on the offense of robbery at common law.

As the case goes back for new trial, other exceptions need not be considered.

New trial.