State v. Banks, 271 N.C. 583

271 N.C. 583 | N.C. | 1967

Per Curiam.

Since a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment, or of a lesser offense included therein, where there is a material variance between the allegations of the indictment and the proof, the defendants’ motion for judgment of nonsuit should be sustained. State v. Keziah, 258 N.C. 52, 127 S.E. 2d 784.

It is obvious that in the present case, unless there was such a variance, the motion for nonsuit was properly denied. It is equally obvious that there was no such variance. The word “gun” is a generic term including a variety of firearms ranging in size and shape from the largest cannon to the smallest pistol. It is a matter of common knowledge that in everyday speech, on television programs and elsewhere, a pistol is frequently called a “gun.” That this is not a misuse of the term “gun,” see: State v. Barnes, 253 N.C. 711, 117 S.E. 2d 849; State v. Christ, 189 Iowa 474, 177 N.W. 54; Black’s Law Dictionary; Webster’s New International Dictionary, 2d Ed.

In common speech, the term “gunslinger” and the phrase “throwing a gun” call to the ordinary mind the use of a pistol. The victim of the alleged robbery in the present case testified that Pauling “throwed a gun” to the back of Cook’s head. He then testified that this “gun” had white handles, that it was “pretty well worn” as “when you carry it in your pocket without the holster,” and Pauling “had the handle in his hand, but when he went to gét out of the car I could see enough of the gun to see that the handles was [sic] white.” These could be no doubt in the mind of any reasonable person that the weapon so referred to by Cook was a pistol. For this reason, there was no error in the denial of the defendants’ motions for judgment of nonsuit, or in the court’s statement in the charge to the jury that the State had produced evidence tending to show the use of a “pistol” or in the instruction that “a pistol is a firearm within the meaning of” the statute dealing with robbery by the use of firearms.

The trial judge reviewed, fairly and adequately, the evidence presented by the defendants in support of their respective claims of alibi. He charged the jury correctly and adequately as to the nature of the claim of alibi and as to the burden of proof when that claim is presented by a defendant charged with crime. While this instruction was given in that portion of the charge concerned with the offense of armed robbery and the court then proceeded to instruct the jury as to the lesser offense of common law robbery without repeating the instruction concerning alibi, this was not error. Obviously, if the jury concluded that the defendants should be acquitted of the charge of armed robbery on the ground that they were not present when the offense was committed, it would acquit them of common law robbery in connection with the same transaction. The jury could not have misunderstood the significance of the court’s instruction on this point.

The remaining exceptions to the charge of the court are equally without merit.

No error.