State v. Osborne

185 S.E.2d 593, 13 N.C. App. 420, 1972 N.C. App. LEXIS 2254

• Court: Court of Appeals of North Carolina
• Decided: January 12, 1972
• Docket: No. 7126SC724
• Status: Published

Opinion

BRITT, Judge.

Defendants assign as error the denial of their motions to dismiss at the close of all the evidence. In State v. Cutler, 271 N.C. 379, 382, 156 S.E. 2d 679, 681 (1967), the court held:

Upon a motion for judgment as of nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence. State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169; State v. Thompson, 256 N.C. 593, 124 S.E. ; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580. All of the evidence actually admitted, whether competent or incompetent, including that offered by the defendant, if any, which is favorable to the State, must be taken into account and so considered by the court in ruling upon the motion. State v. Walker, 266 N.C. 269, 145 S.E. 2d 833; State v. Virgil, 263 N.C. 73, 138 S.E. 2d 777.

The evidence presented in this case when considered in that light indicates that defendants were acting in concert; that Lowery, while standing three feet from Alexander with Osborne at his side, pulled a knife; that Osborne put his hand in his own pocket and threatened to get his gun; that Lowery reached in Alexander’s pocket and removed 90 cents in change; and that the prosecuting witness was in fear for his life. We hold that there was sufficient evidence to withstand the motion for non-suit and the assignment of error is without merit.

Defendants assign as error that portion of the jury charge in which the court instructed as to common law robbery. Defendants contend that in its instructions the court made no proper distinction between the statutory offense of robbery with a dangerous weapon (G.S. 14-87) and common law robbery; that since the instructions on the two offenses were almost the same, the jury was confused and possibly returned a verdict of guilty as charged rather than common law robbery as they could make no distinction in the offenses.

Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Lawrence, 262 N.C. 162, 163, 136 S.E. 2d 595, 597 (1964). G.S. 14-87 creates no new offense; it does not add to or substract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense as set forth in the statute, more severe punishment may be imposed. State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966).

In reality, where a weapon which is dangerous within the meaning of G.S. 14-87 is used in a robbery, the only difference between common law robbery and armed robbery as provided by G.S. 14-87 is whether the life of the person robbed is endangered or threatened by the weapon. While the distinction is small, the difference in punishment can be considerable. A careful review of the instructions in the case at bar impels us to conclude that under the facts presented in this case the able trial judge did not make a sufficient distinction between armed robbery and common law robbery. For that reason, defendants are entitled to a new trial.

Although the sufficiency of the bill of indictment against defendant Osborne has not been challenged, and we do not pass upon the question, prior to a retrial of the cases the solicitor might be well advised to give the bill his careful consideration.

New trial.

Judges Brock and Vaughn concur.