174 S.E.2d 690 | N.C. Ct. App. | 1970
STATE of North Carolina
v.
James R. JENKINS.
Court of Appeals of North Carolina.
*691 Robert Morgan, Atty. Gen., by Carlos W. Murray, Jr., Raleigh, Staff Atty., for the State.
Hux & Livermon, by James S. Livermon, Jr., Enfield, for defendant appellant.
GRAHAM, Judge.
Defendant contends that the case should have been nonsuited because the evidence shows that neither the defendant nor his companion made any verbal demand that the prosecuting witness surrender the money. This contention is without merit. No verbal demand was necessary as the witness responded immediately when the gun was pointed in his face by pitching the money onto the floor. It may be that the original purpose of defendant and his companion in going to the upstairs of the theater in the dead of night was to commit larceny or some crime other than armed robbery. However, when Inscoe appeared on the scene and was threatened with a pistol and ordered into a closet in an effort by *692 defendant and his companion to further their unlawful purpose, the offense became one of armed robbery.
Defendant also argues that the State's case should fail because it was not positively established by the evidence that defendant or his companion took the bag of money which was thrown onto the floor. This argument is likewise completely without merit. No one was present in the upstairs of the theater during the period when the money disappeared other than the prosecuting witness and the two defendants, who had made their unlawful purposes well known. Furthermore, it was not incumbent upon the State to prove that defendants actually took the money. In a prosecution for the offense of armed robbery under G. S. § 14-87 the offense is complete if there is an attempt to take personal property by use of firearms or other dangerous weapons. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525; State v. Parker, 262 N.C. 679, 138 S.E.2d 496. "So great is the offense when life is endangered and threatened by the use of firearms or other dangerous weapons, that it is not of controlling consequence whether the assailants profit much or little, or nothing, from their felonious undertaking. The attempt to take property by the forbidden means, all other elements being present, completes the offense." State v. Parker, supra, at p. 682, 138 S.E.2d at p. 499.
Defendant next contends that the court erroneously permitted the solicitor to propound certain questions on cross-examination which assumed the existence of facts which were not established in evidence or admitted. The questions concerned prior inconsistent statements that had been given by the witnesses to law enforcement officers investigating the offense. We find nothing improper about the questions. "A witness may be impeached by proof that on other occasions he has made statements inconsistent with his testimony on the present trial." Stansbury, N.C. Evidence 2d, § 46. The questions asked by the solicitor compare in no way with those condemned in State v. Phillips, 240 N.C. 516, 82 S.E.2d 762, as suggested by defendant. Here the record clearly indicates that the solicitor had a legitimate basis for propounding the questions. The witnesses made several admissions regarding statements which they had previously made which indicate that their prior statements differed in material respects from the alibi evidence they gave in court. Also, Detective Harry House, Jr. testified for impeachment purposes concerning prior inconsistent statements made to him by the witnesses. The court properly instructed the jury regarding the impeachment purposes of the detective's testimony, and his testimony, in our opinion, was clearly admissible.
Defendant assigns as error the failure of the court to submit to the jury the issue of defendant's guilt of the lesser included offense of common law robbery. We find no evidence in the record tending to establish the lesser crime. Where there is no evidence that would permit a jury to find defendant guilty of a lesser included offense, it is not incumbent on the court to charge with respect thereto. State v. Parker, supra.
Defendant's two remaining assignments of error are also without merit. The court's charge to the jury was in no way prejudicial to defendant, and the sentence imposed was within the limits provided by law and does not constitute cruel and unusual punishment.
No error.
MALLARD, C. J., and MORRIS, J., concur.
