9 N.C. App. 410 | N.C. Ct. App. | 1970
Defendant assigns as error the overruling of his motion for judgment of nonsuit. The witness for the State positively identified the defendant as one of the two persons who robbed him with a .32 or .38 pistol. There was ample evidence to require submission of the case to the jury.
Defendant assigns as error two statements made by the trial judge in the charge to the jury that armed robbery carries with it greater punishment than common law robbery. In doing so, the judge was attempting to distinguish the differences between armed robbery and common law robbery. These statements by the judge did not point out the exact amount of punishment for either offense. While it is ordinarily error in noncapital cases for the trial judge to inform the jury as to punishment, such information by the judge does not always constitute prejudicial error.
In the case of State v. Rhodes, 275 N.C. 584, 169 S.E. 2d 846 (1969), it is said:
“It does not follow, however, that instructions disclosing the punishment authorized by statute will always constitute prejudicial error. The propriety and effect of such an instruction must be considered ‘in the light of the circumstances of the trial, as, for example, where it is made in response to remarks of counsel on the subject made in the presence of the jury.’ * * *”
In the case of State v. Howard, 222 N.C. 291, 22 S.E. 2d 917 (1942), the Court held:
*413 “The rule prevails that in order to overthrow the verdict and judgment it must be made to appear not only that the action of the trial judge complained of was erroneous, but that it was ‘material and prejudicial, amounting to a denial of some substantial right.’ * * *”
We hold that in this case it was not prejudicial error for the judge to inform the jury that armed robbery carries a greater punishment than common law robbery.
Defendant contends that the trial judge did not adequately define common law robbery. When the charge is viewed as a whole, we are of the opinion and so hold that the charge as to common law robbery was adequate.
We have carefully examined all of the defendant’s assignments of error, and no prejudicial error is made to appear.
In the trial we find no error.
No Error.
