At tbе conclusion of bis Honor’s charge, counsel for defendants requested tbe court to charge tbe jury that if it should be found thаt tbe money was paid voluntarily by tbe State’s witness to tbe defendant, Bob Holt, and that after tbe payment there was an altercation, and tbe defendant, Bob Holt, struck tbe witness with a pistol, that this would constitute only an assault with a deadly weapon. Tbе trial judge stated: “I think my charge fully covers that. I have instructed them that highway robbery constitutes tbe taking by violence and force, and before you can convict these defendants you must find it was taken by violence and force.” Counsel for defendants thereupon addressed this question to tbe judge: “Did your Honor charge relative to tbe fact that they could be conviсted of assault with a deadly weapon' in this matter?” Tbe judge replied, “No, sir.”
Tbe only question submitted to tbe jury by tbe trial judge in bis charge was, whether or not tbe defendants, Bob Holt and Hassell Holt, or either of them was guilty of robbery, and whether or not Byron Gibson and Charles Holt were present, aiding and abetting in tbe perpetration of tbe crime. Tbe charge of tbe court concludеd with these words: “Now, as I stated, ge.ntlemen, you may convict one or all of these defendants as you may find tbe facts to bе, under tbe charge of tbe court, or you may acquit tbe one or all of them, as you may find tbe facts to be under tbe chаrge of tbe court.”
Tbe request of defendants’ counsel that tbe court charge tbe jury that they could find tbe defendants guilty of an assault with a deadly weapon was not in writing, and hence did not comply with C. S., 565, and tbe trial judge was at liberty to disregard it. But, was it tbe duty of tbe trial judge, under tbe evidence, to present that phase of tbe case, irrespective of a proper rеquest from counsel for defendants?”
C. S., 4639, provides as follows: “On tbe trial of any person for rape, or any felony whatsoеver, when tbe crime charged includes an assault against tbe person, it is lawful for tbe jury to- acquit of tbe felony and to find a verdict of guilty of assault against tbe person indicted, if tbe - evidence warrants such finding, etc.”
Lord Mansfield defines robbery thus: “A feloniоus taking of property from tbe person of another by force.” Blackstone defines it as “tbe felonious and forcible taking from tbe person of another of goods or money of any value by violence or putting him in fear.”
To constitute highwаy robbery, it is only necessary to further charge and prove that tbe crime was committed in or near a highway.
S. v. Burke,
Does the evidence in this case warrant such finding? The evidence for the State makes out a crime for highway robbеry only, but the evidence of defendants, if believed, tends to show that there was no robbery at all, for that the State’s witness voluntаrily paid the money to the defendant, Holt, and, after such voluntary payment, was thereafter assaulted with a deadly weаpon. This evidence warranted the submission to the jury, of the question of assault with deadly weapon; and if the evidence, in suсh cases, warrants it, the trial judge must submit that phase of the case to the jury whether properly requested or not.
In
S. v. Hill,
In S. v. Williams, 185, N. C., 685, the defendant was charged with rape, and his counsеl requested the court to charge the jury that there were five verdicts that might be returned under the indictment, to wit: (1) Rape; (2), assault with intent to commit rape; (3), assault with deadly weapon; (4), assault upon a female; (5), not guilty. The trial judge refused to give this instructiоn, and the defendant excepted. In discussing this exception, Justice Walker says: “The instruction requested by the prisoner should have been given, at least substantially, and if not given, or if it had not been asked for, the judge, of his own motion, should have submitted to the jury proper instructions as to the commission of a lesser offense than that charged in the bill of indictment, and his failure to do so even without аn appropriate prayer by the prisoner was error.” (Citing C. S., 4639-4640.)
In
S. v. Nash,
The аttorney-general, with his usual candor and frankness, in discussing the failure of the court to charge the jury as to whether or not the dеfendants could be convicted of an assault with a deadly weapon, says: “This, in reality, presents a serious question, but we submit thаt
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while the evidence of the prosecuting witness showed an assault with the deadly weapon upon him, that this very assault was рart of the means used by the defendant, Bob Holt, to consummate the highway robbery.” This identical contention appears in
S. v. Williams,
For the error specified, in failing to submit to the jury the phase of the case, involving assault with a deadly weapon, there must be a
New trial.