State v. Evans
183 S.E.2d 540
N.C.
1971
Check Treatment
LAKE, Justice.

G.S. 14-87 provides: “Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business * * * or any other place where there is a person or persons in attendance * * * or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony * * * The offense is complete if there is either a taking or an attempt to take the personal property of another by the means and in the manner prescribed by the statute, but there must be one or the other. State v. Parker, 262 N.C. 679, 138 S.E. 2d 496.

For a conviction of robbery with firearms or other dangerous weapons, the State must further show beyond a reasonable doubt that the life of a person was endangered or threatened by the defendant’s, or his accomplice’s, possession, use or threatened use of a firearm or other dangerous weapon, implement or means. State v. Stewart, 255 N.C. 571, 122 S.E. 2d 355. Proof of this additional element is, of course, not required for conviction of the offense of common law robbery. Proof of the defendant’s presence in a place of business, his possession therein of a firearm and his intent to commit the offense of robbery is not sufficient to support a conviction of the offense described in G.S. 14-87, for it omits the essential elements of (1) a taking or attempt to take personal property, and (2) the endangering or threatening of the life of a person.

The respective indictments charge that these defendants, “having in possession and with the use and threatened use of a certain firearm, to wit, a shotgun, whereby the life of Martha Eckert was endangered and threatened, did commit an assault-upon and put in bodily fear the said Martha Eckert and by the means aforesaid and by threats of violence did unlawfully, wilfully and feloniously attempt to take, steal and carry away personal property” from the place of business described.

“It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.” State v. Jackson, 218 N.C. 373, 11 S.E. 2d 149; State v. Keziah, 258 N.C. 52, 127 S.E. 2d 784. He may, of course, be convicted of a lesser offense included therein. It is elementary that, upon a motion for judgment of nonsuit in a criminal action, the evidence must be considered in the light most favoraable to the State and the State is entitled to every favorable inference reasonably to be drawn from it. State v. Miller, 270 N.C. 726, 154 S.E. 2d 902. The evidence offered by the State must be taken to be true and any contradictions and discrepancies therein must be resolved in its favor. State v. Lipscomb, 274 N.C. 436, 163 S.E. 2d 788; State v. Goines, 273 N.C. 509, 160 S.E. 2d 469; State v. Clyburn, 273 N.C. 284, 159 S.E. 2d 868; State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679. For the purpose of such motion, the evidence of the defendant is considered only to the extent that it is favorable to the State or for the purpose of explaining or making clear the State’s evidence, insofar as it is not in conflict therewith. State v. Spears, 268 N.C. 303, 150 S.E. 2d 499.

There must be substantial evidence of all material elements of the offense charged in order to withstand a motion for judgment of nonsuit. State v. Hill, 272 N.C. 439, 158 S.E. 2d 329; State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431. If, considered in accordance with the above mentioned rule, the evidence is sufficient only to raise a suspicion or conjecture as to whether the offense charged was committed, the motion for nonsuit should be allowed even though the suspicion so aroused by the evidence is strong. State v. Clybum, supra; State v. Cutler, supra; State v. Harvey, 228 N.C. 62, 44 S.E. 2d 472.

With reference to the defendant Britton, the State’s evidence shows only that he entered the building with Evans, stopped and, throughout the entire episode, stood at the counter upon which the cash register sat, but that he could not, in that position, open or reach into the cash register and that he left the building and the premises with Evans and Hairston. The State’s evidence does not show that he addressed any remark to any occupant of the building, had any weapon, made any threat or demand or committed any other act. The testimony of all three of the defendants is that Britton had been picked up by Evans and Hairston some five minutes earlier for the sole purpose of giving him a ride to his destination, that there was no conversation of consequence between him and either of the other defendants, or between Evans and Hairston in his presence, concerning any robbery of this business establishment. Britton testified that he did not hear any statement by Evans inside the building concerning a holdup. None of this testimony is in conflict with any of the evidence offered by the State. If it be assumed that Evans, Hairston, or both of them, committed the offense charged, the mere presence of Britton at the scene of the crime and at the time of its commission does not make him a principal in the second degree. State v. Bruton, supra; State v. Birchfield, 235 N.C. 410, 70 S.E. 2d 5. Consequently, Britton’s motion for judgment of nonsuit should have been granted.

As to the defendants Evans and Hairston, the evidence for the State is simply that Evans walked into the building, went into the kitchen area and there said to Gary Douglas, “This is a holdup; no one’s going to get hurt.” At about that moment, Hairston walked into the building with a loaded, but breeched, shotgun cradled on one arm. Nothing else appearing, this would be evidence of an intent to perpetrate a robbery, but the State’s evidence does not stop there. The State’s evidence is that, upon the mere remonstrance of a single unarmed customer, Hairston stated that his purpose in coming into the building was to settle an argument with someone in the back of the building and removed the shell from the gun. Hairston’s testimony, not in conflict with the State’s evidence, identifies the other party to his argument as Evans. The State’s evidence is that immediately upon the customer’s objection to his having the loaded gun in the building, Hairston removed the shell from the gun, put it in his pocket and left the building, stopping in front of it long enough for some discussion with Evans. Hairston never pointed the gun at anyone or threatened to use it for any purpose.

As to Evans, though he denies making any statement about a holdup, the State’s evidence in this respect must be taken to be true. However, the State’s evidence shows that Gary Douglas, to whom the statement was made, treated it as a joke, ignored Evans and continued his work of washing the kitchen wall. Miss Douglas, hearing Evans’ remark, “kept on fixing the chicken.” Mrs. Eckert, having heard the remark, did nothing but receive from Evans the two dollars, promptly paid to her by him when the package of chicken was handed to him by Miss Douglas. Thereupon, Evans counted out and handed to Miss Douglas the additional 58 cents required to make up the agreed price of the container of chicken. The three men then left the building, having made no demand upon anyone for anything and having made no effort to open or to force anyone else to open the cash register. Leaving the building, the three defendants drove their car out of the parking lot into the street where it stalled. They allowed it to roll back downgrade to a shady place “just around the corner” where they parked and sat, eating their purchased chicken, until the police officers arrived, whereupon they requested the officers to assist them to start their car.

The State’s evidence completely negates the allegation in the indictment of an assault upon Mrs. Eckert, the allegation that the defendants endangered or threatened her life by the use and threatened use of the shotgun, and the allegation that they attempted to take personal property from this business establishment. The conduct of the defendants, shown by the State’s evidence, is utterly inconsistent with an attempt to rob, and the motions by Evans and Hairston for judgment of non-suit, like that of Britton, should have been allowed.

It is unnecessary to discuss the remaining assignments of error.

Reversed.