67 N.C. App. 703 | N.C. Ct. App. | 1984
For his first assignments of error defendant contends the trial judge erred in denying his motion to dismiss the charges of armed robbery and assault with a deadly weapon inflicting serious injury, contending the State had failed to prove beyond a reasonable doubt that a dangerous weapon was used to endanger or threaten the life of the victim.
The essentials of the offense of armed robbery set forth in G.S. 14-87 are (1) the unlawful taking or attempting to take personal property from another; (2) the possession, use, or threatened use of firearms, or other dangerous weapon, implement or means; and (3) danger or threat to the life of the victim. State v. Gibbons, 303 N.C. 484, 489, 279 S.E. 2d 574, 578 (1981), quoting, State v. Joyner, 295 N.C. 55, 63, 243 S.E. 2d 367, 373 (1978). Defendant contends the State has failed to present sufficient evidence of the last two elements, which constitute the difference between armed
The critical and essential difference between the offense of armed robbery and common law robbery is whether the victim’s life was endangered or threatened by the use or threatened use of a firearm or other dangerous weapon. State v. Joyner, supra at 63, 243 S.E. 2d at 373; State v. Chambers, 53 N.C. App. 358, 362, 280 S.E. 2d 636, 639 (1981). Actual possession and use or threatened use of firearms or other dangerous weapons are necessary to constitute the offense of robbery with firearms or other dangerous weapons. State v. Faulkner, 5 N.C. App. 113, 168 S.E. 2d 9 (1969). Admittedly, the State presented no evidence regarding any kind of weapon, either from the victim or the defendant. But we conclude this case falls within the guidelines set forth in State v. Rowland, 263 N.C. 353, 139 S.E. 2d 661 (1965). In that case the court cited with approval People v. Liner, 168 Cal. App. 2d 411, 335 P. 2d 964 (4th Dist. Ct. of Appeals), which held that the jury could infer, from the appearance of the wound on the back of the victim’s scalp that a blunt object —a dangerous or deadly weapon — was used.
In the case under review, the victim was hit in the back of his head with an object of sufficient size so as to stun the victim, knock him to the floor, and cause a hematoma and a one to one and one-half inch laceration requiring four to five stitches on the back of the victim’s head. The treating physician, with 30 years experience, testified that he would not have considered the wound minor if it had been inflicted to his head. He further testified that had the blow been delivered a little harder, such would have been life-threatening. This evidence is sufficient from which the jury could infer the instrument used by defendant was a dangerous weapon, implement or means, and created a danger or threat to the life of the victim. As stated in State v. West, 51 N.C. 505, 509 (1859), “the actual effects produced by the instrument, may aid in determining its character in this respect, and in showing that the person using it, ought to be aware of the danger of thus using it.” Defendant’s first assignments of error are overruled.
The term “inflicts serious injury” means physical or bodily injury resulting from an assault with a dangerous weapon with intent to kill. “The injury must be serious but it must fall short of causing death. . . . Whether such serious injury has been inflicted must be determined according to the particular facts of each case.” State v. Jones, 258 N.C. 89, 91, 128 S.E. 2d 1, 3 (1962). The facts of this particular case include the unrebutted testimony of the physician that due to its location the injury would have been life-threatening had the victim been hit a little harder, and that he would not have considered the blow minor had it been committed on him. The victim’s head was cut; stitches were required as treatment. There was enough evidence from which the jury could infer the blow inflicted serious injury.
Lastly, defendant contends the court erred in failing to instruct the jury on the lesser included offense of simple assault. “The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed.” State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954). There was ample evidence of the greater offense in this case, while the record is void of any evidence tending to show that defendant may be guilty of a lesser included offense. The proper charges were given.
In the trial of the case we find
No error.