No. 7228SC583 | N.C. Ct. App. | Nov 22, 1972
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" court="N.C. Ct. App." date_filed="1970-07-15" href="https://app.midpage.ai/document/state-v-wall-1206854?utm_source=webapp" opinion_id="1206854">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
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" court="N.C." date_filed="1971-02-10" href="https://app.midpage.ai/document/state-v-bailey-1327055?utm_source=webapp" opinion_id="1327055">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
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.