State v. Barksdale

16 N.C. App. 559 | N.C. Ct. App. | 1972

BROCK, Judge.

Defendant assigns as error the court’s instruction to the jury that “ . . . regardless of how you find the defendant, whether you find him guilty or not guilty of attempted armed robbery, you will consider whether or not he is guilty of aiding and abetting in the crime of common law robbery.” This instruction allowed the jury to find defendant guilty of both attempted armed robbery and common law robbery. One who aids and abets another in the commission of a crime is equally guilty with the actual perpetrator. State v. Wall, 9 N.C. App. 22, 175 S.E. 2d 310.

G.S. 14-87 specifically provides that: “Any person . . . (who) with the use or threatened use of any firearms . . . unlawfully takes or attempts to take personal property from another . . . shall be guilty of a felony ...” punishable by imprisonment from 5-30 years. (Emphasis added.) Our courts have held that this statute creates no new offense, but merely provides for more severe punishment for the commission, or attempt to commit, common law robbery when that offense is committed or attempted with the use or threatened use of firearms or other dangerous weapons. State v. Smith, 268 N.C. 167, 150 S.E. 2d 194. Common law robbery or attempted common law robbery, therefore, when aggravated by the use or threatened use of a firearm or other dangerous weapon is a felony punishable in accordance with the provisions of G.S. 14-87.

Defendant was charged in a bill of indictment with armed robbery. The jury was instructed it could find defendant guilty or not guilty of both attempted armed robbery and aiding and abetting in common law robbery. G.S. 15-170 provides in part: “Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime. ...” However, in addition to attempted armed robbery, the jury was allowed to convict defendant of aiding and abetting in common law robbery, a lesser included offense of armed robbery. We hold this to be error.

When justified by the evidence, in a trial based on an indictment for armed robbery, the question of guilt of common law robbery is properly submitted to the jury, because it is a lesser included offense of armed robbery. State v. Bailey, 278 N.C. 80, 178 S.E. 2d 809. However, the question of guilt of a lesser included offense must be submitted as an alternative to a finding of guilt of a greater offense, not as an additional offense. It is anomalous that defendant was convicted of both an attempt to commit common law robbery (aggravated by the use of firearms) and common law robbery for the same conduct. It would seem that defendant either robbed his victim or just attempted to rob him, but not both. Whether a firearm was used would constitute an aggravation of either offense, but it would not constitute an additional offense.

A bill of indictment for armed robbery can support a conviction of attempted armed robbery or common law robbery, but not both for the same conduct. See State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892.

It seems that the trial judge viewed the conduct of defendant on the outside of the station and that of Otis Abney, defendant’s alleged accomplice, on the inside of the station as two distinct offenses. However, it appears clear that defendant and his accomplice were there to rob whoever the attendants of the station might be. While defendant was outside the station undertaking to get the money by the threatened use of a firearm on one attendant, his accomplice succeeded in getting the money by assaulting the other attendant on the inside of the building. In our view, this constitutes a single transaction, and, under the uncontradicted evidence, defendant could be found guilty only of armed robbery or attempted armed robbery. There is no evidence that defendant participated in the event other than with the use of the shotgun. The only evidence from which it can be argued that defendant aided and abetted his accomplice in common law robbery was the evidence of defendant’s participation in the event with the threatened use of the shotgun. From this uncontradicted evidence the jury would be justified in finding defendant guilty only of armed robbery or attempted armed robbery, or not guilty.

We have examined defendant’s other assignments of error and find no prejudicial error.

The verdict of guilty of common law robbery is vacated and the judgment rendered thereon is arrested.

No error in the trial, conviction, and judgment for attempted armed robbery.

Chief Judge Mallard and Judge Britt concur.