Bobbitt, J.
There was plenary evidence a “colored boy” entered the Towne House Bakery, Biltmore Avenue, Asheville, apparently as a customer, on June 23, 1965, about 1:50 a.m.; that, after looking around briefly, he pulled “a neckerchief” over his mouth, pointed a “nickel-plate pistol” at Rita Bryant, age 19, who was employed as a cashier, and demanded “the money out of the cash register”; that Miss Bryant “handed him the cash drawer”; and that “he took the bills,” “took around $45.00,” and ran. Miss Bryant testified to the above facts but testified she did not know and could not identify the “colored boy” who committed the robbery.
Arresting oflicers testified Lynch, shortly after his arrest on the night of June 23rd, made statements to the effect he had committed the robbery but that he had used “a small toy gun, silver colored,” and that “the lady gave him $29.00.”
Appellant assigns as error the court’s denial of his motion for judgment as of nonsuit. He contends there is a fatal variance between the indictment and the proof in that the indictment charges the robbery occurred “at and in and near the public highway” and that the money obtained was “the property of the said Rita BryaNt” whereas the evidence tends to show a robbery on the premises of Towne House Bakery and that the money obtained was the property of the Towne House Bakery.
“(T)he distinction between robbery and highway robbery, as to punishment and otherwise, is no longer recognized in this jurisdiction — the punishment is imprisonment in the State’s prison for a term not to exceed 10 years.”
S. v. Lawrence,
262 N.C. 162, 164, 136 S.E. 2d 595. The words, “at and in and near the public highway,” do not relate to essentials of the crime of robbery. These surplus words in the bill of indictment tend to indicate vaguely the location
of the alleged robbery. The evidence tends to show the robbery occurred within a business establishment on Biltmore Avenue in Asheville. There is no variance between
the crime
charged and the proof, and the variation between the surplus words and the proof is without substantial significance.
Defendant cites
S. v. Cowan,
29 N.C. 239, decided at June 1847 Term, where, in a trial on an indictment charging “robbery
in
the highway,” it was held it was not permissible to admit evidence of a robbery that occurred on a wharf
near
the public highway (a Wilmington street). Suffice to say, the present case is distinguishable in that the indictment here alleges the offense occurred “at and in
and near
the public highway.” (Our italics.) This Court has upheld a conviction where the indictment charged the robbery occurred “at and near a certain highway” and the evidence showed it occurred some 50 or 75 yards therefrom.
S. v. Nicholson,
124 N.C. 820, 32 S.E. 813.
It should be noted, as pointed out by Moore, J., in
S. v. Lawrence, supra,
that “(u)ntil a relatively recent date robbery in or near a public highway (highway robbery) was a capital offense in North Carolina.
State v. Johnson,
61 N.C. 140 (1866);
State v. Anthony,
29 N.C. 234 (1847).”
As to the variance with reference to the ownership of the stolen money, it is noted that “(t)he gist of the offense (robbery) is not the taking, but a taking by force or the putting in fear.”
S. v. Sawyer,
224 N.C. 61, 65, 29 S.E. 2d 34, and cases cited. As stated by Winborne, J. (later C.J.), in S.
v. Sawyer, supra:
“(I)n an indictment for robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property.” “It is not essential to the crime of robbery that the property be taken from the actual holder of the legal title, a taking from one having the care, custody, control, management, or possession of the property being sufficient.” 77 C.J.S., Robbery § 7; 46 Am. Jur., Robbery § 9.
The court properly overruled appellant’s motion for judgment as in case of nonsuit.
The only evidence tending to identify Lynch as the “colored boy” who entered Towne House Bakery and robbed Rita Bryant consists of testimony as to an oral confession by Lynch and of testimony as to an oral and as to a written confession by Norris. Evidence of persons passing in cars at or near the time of the robbery tends to show the boy or boys they saw in the vicinity of Towne House Bakery were smaller and younger than Lynch and Norris. It is noted all confessions attributed to Norris are to the effect Lynch was the actual perpetrator of the robbery and that Norris
was waiting in an alley nearby and was given part of the money.
When a witness (officer) for the State testified to the oral confession of Norris, the court, upon objection by counsel for Lynch, instructed the jury this testimony was not for consideration as to Lynch; and when he testified to the confession of Lynch, the court, upon objection by counsel for Norris, instructed the jury this testimony was not for consideration as to Norris. While the State was offering evidence, there was no objection on the ground either confession was involuntary.
After the State had rested, Lynch testified he did not enter the Towne House Bakery or have any connection with the alleged robbery; and that, although offered inducements to do so, he had made no statement that he was involved in the alleged crime. Thereafter, Norris testified to the effect he was not involved in the alleged crime and that, although he and Lynch had been together earlier in the evening, they had separated and gone different ways before the crime charged is alleged to have been committed.
Based upon evidence received in the absence of the jury, which does not appear in the record before us, the court found, in the absence of the jury, that the oral and written confessions of Norris were voluntarily made. The written confession of Norris, identified as State’s Exhibit 1, was offered and received in evidence. Upon objection by counsel for Lynch, the court instructed the jury it was not for consideration as to Lynch. Norris’ written confession identifies Lynch as the person who proposed and perpetrated the venture at Towne House Bakery and quotes remarks attributed to Lynch.
The State offered a rebuttal witness (officer) who testified, in the presence of the jury, as to the confession attributed to Lynch and the circumstances under which it was made. Referring to State’s Exhibit 1, Norris’ written confession, the solicitor asked: “This paper writing, did you have that present at the time you were talking to Theodore Lynch?” The witness answered: “Yes, sir, we did.” Quoted below are the questions and answers that follow.
“Q. Did you show it to Theodore Lynch? ObjectioN — Overruled — ExceptioN #7. A. No, sir, we let him know that we did have a statement. Q. Did you read it to him? A. In part. Q. Which parts did you read to him? A. As to where Norris had identified him as being with him. Objection — OveRruled—ExoepTION #8.”
The court made findings,
in the absence of the jury,
that the confession attributed to Lynch was voluntarily made. See
S. v. Walker,
266 N.C. 269, 145 S.E. 2d 833;
Cf. Jackson v. Denno,
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Bobbitt, J.
There was plenary evidence a “colored boy” entered the Towne House Bakery, Biltmore Avenue, Asheville, apparently as a customer, on June 23, 1965, about 1:50 a.m.; that, after looking around briefly, he pulled “a neckerchief” over his mouth, pointed a “nickel-plate pistol” at Rita Bryant, age 19, who was employed as a cashier, and demanded “the money out of the cash register”; that Miss Bryant “handed him the cash drawer”; and that “he took the bills,” “took around $45.00,” and ran. Miss Bryant testified to the above facts but testified she did not know and could not identify the “colored boy” who committed the robbery.
Arresting oflicers testified Lynch, shortly after his arrest on the night of June 23rd, made statements to the effect he had committed the robbery but that he had used “a small toy gun, silver colored,” and that “the lady gave him $29.00.”
Appellant assigns as error the court’s denial of his motion for judgment as of nonsuit. He contends there is a fatal variance between the indictment and the proof in that the indictment charges the robbery occurred “at and in and near the public highway” and that the money obtained was “the property of the said Rita BryaNt” whereas the evidence tends to show a robbery on the premises of Towne House Bakery and that the money obtained was the property of the Towne House Bakery.
“(T)he distinction between robbery and highway robbery, as to punishment and otherwise, is no longer recognized in this jurisdiction — the punishment is imprisonment in the State’s prison for a term not to exceed 10 years.”
S. v. Lawrence,
262 N.C. 162, 164, 136 S.E. 2d 595. The words, “at and in and near the public highway,” do not relate to essentials of the crime of robbery. These surplus words in the bill of indictment tend to indicate vaguely the location
of the alleged robbery. The evidence tends to show the robbery occurred within a business establishment on Biltmore Avenue in Asheville. There is no variance between
the crime
charged and the proof, and the variation between the surplus words and the proof is without substantial significance.
Defendant cites
S. v. Cowan,
29 N.C. 239, decided at June 1847 Term, where, in a trial on an indictment charging “robbery
in
the highway,” it was held it was not permissible to admit evidence of a robbery that occurred on a wharf
near
the public highway (a Wilmington street). Suffice to say, the present case is distinguishable in that the indictment here alleges the offense occurred “at and in
and near
the public highway.” (Our italics.) This Court has upheld a conviction where the indictment charged the robbery occurred “at and near a certain highway” and the evidence showed it occurred some 50 or 75 yards therefrom.
S. v. Nicholson,
124 N.C. 820, 32 S.E. 813.
It should be noted, as pointed out by Moore, J., in
S. v. Lawrence, supra,
that “(u)ntil a relatively recent date robbery in or near a public highway (highway robbery) was a capital offense in North Carolina.
State v. Johnson,
61 N.C. 140 (1866);
State v. Anthony,
29 N.C. 234 (1847).”
As to the variance with reference to the ownership of the stolen money, it is noted that “(t)he gist of the offense (robbery) is not the taking, but a taking by force or the putting in fear.”
S. v. Sawyer,
224 N.C. 61, 65, 29 S.E. 2d 34, and cases cited. As stated by Winborne, J. (later C.J.), in S.
v. Sawyer, supra:
“(I)n an indictment for robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property.” “It is not essential to the crime of robbery that the property be taken from the actual holder of the legal title, a taking from one having the care, custody, control, management, or possession of the property being sufficient.” 77 C.J.S., Robbery § 7; 46 Am. Jur., Robbery § 9.
The court properly overruled appellant’s motion for judgment as in case of nonsuit.
The only evidence tending to identify Lynch as the “colored boy” who entered Towne House Bakery and robbed Rita Bryant consists of testimony as to an oral confession by Lynch and of testimony as to an oral and as to a written confession by Norris. Evidence of persons passing in cars at or near the time of the robbery tends to show the boy or boys they saw in the vicinity of Towne House Bakery were smaller and younger than Lynch and Norris. It is noted all confessions attributed to Norris are to the effect Lynch was the actual perpetrator of the robbery and that Norris
was waiting in an alley nearby and was given part of the money.
When a witness (officer) for the State testified to the oral confession of Norris, the court, upon objection by counsel for Lynch, instructed the jury this testimony was not for consideration as to Lynch; and when he testified to the confession of Lynch, the court, upon objection by counsel for Norris, instructed the jury this testimony was not for consideration as to Norris. While the State was offering evidence, there was no objection on the ground either confession was involuntary.
After the State had rested, Lynch testified he did not enter the Towne House Bakery or have any connection with the alleged robbery; and that, although offered inducements to do so, he had made no statement that he was involved in the alleged crime. Thereafter, Norris testified to the effect he was not involved in the alleged crime and that, although he and Lynch had been together earlier in the evening, they had separated and gone different ways before the crime charged is alleged to have been committed.
Based upon evidence received in the absence of the jury, which does not appear in the record before us, the court found, in the absence of the jury, that the oral and written confessions of Norris were voluntarily made. The written confession of Norris, identified as State’s Exhibit 1, was offered and received in evidence. Upon objection by counsel for Lynch, the court instructed the jury it was not for consideration as to Lynch. Norris’ written confession identifies Lynch as the person who proposed and perpetrated the venture at Towne House Bakery and quotes remarks attributed to Lynch.
The State offered a rebuttal witness (officer) who testified, in the presence of the jury, as to the confession attributed to Lynch and the circumstances under which it was made. Referring to State’s Exhibit 1, Norris’ written confession, the solicitor asked: “This paper writing, did you have that present at the time you were talking to Theodore Lynch?” The witness answered: “Yes, sir, we did.” Quoted below are the questions and answers that follow.
“Q. Did you show it to Theodore Lynch? ObjectioN — Overruled — ExceptioN #7. A. No, sir, we let him know that we did have a statement. Q. Did you read it to him? A. In part. Q. Which parts did you read to him? A. As to where Norris had identified him as being with him. Objection — OveRruled—ExoepTION #8.”
The court made findings,
in the absence of the jury,
that the confession attributed to Lynch was voluntarily made. See
S. v. Walker,
266 N.C. 269, 145 S.E. 2d 833;
Cf. Jackson v. Denno,
378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A.L.R. 3d 1205. While
the evidence was conflicting, there was sufficient evidence to support these findings.
The testimony of Miss Bryant and the confession attributed to Lynch were sufficient to support the verdict. However, it seems probable
the written statement
of Norris was in fact the evidence which, despite the instructions given, weighed most heavily against Lynch.
Where two or more persons are jointly tried, the extrajudicial confession of one defendant may be received in evidence over the objection of his codefendant(s) when,
hut only when,
the trial judge instructs the jury that the confession so offered is admitted in evidence against the defendant who made it but is not evidence and is not to be considered by the jury in any way in determining the charges against his codefendant(s).
S. v. Bennett,
237 N.C. 749, 753, 76 S.E. 2d 42, and cases cited; S.
v. Arnold,
258 N.C. 563, 573-574, 129 S.E. 2d 229; Stansbury, North Carolina Evidence, Second Edition, § 188. “While the jury may find it difficult to put out of their minds the portions of such confessions that implicate the co-defendant (s), this is the best the court can do; for such confession is clearly competent against the defendant who made it. Compare:
Paoli v. United States, 352
U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278.”
S. v. Kerley,
246 N.C. 157, 161, 97 S.E. 2d 876.
The circumstances under which, upon timely motion, a defendant who is indicted jointly with another may be entitled to a separate trial as a matter of right where the State’s evidence includes the confession of a codefendant that points directly to the guilt of the movant is not presented for decision.
While the court took precaution in many instances to give instructions that the jury was not to consider the confessions of Norris in passing upon the guilt of Lynch, there is merit in Exception #8. The court erred in admitting over objection the officer’s testimony to the effect Norris in his written confession had identified Lynch as a participant in the robbery. The prejudicial effect of this erroneous ruling was accentuated by the fact the written confession of Norris was before the jury.
When all circumstances are considered, we are of the opinion and so decide that Lynch should be awarded a new trial at which his guilt or innocence will be determined by evidence against him and not by evidence incompetent as to him but devastating in its impact upon his case. It is so ordered.
New trial.
MooRE, J., not sitting.