It mаy be conceded that the identification of defendants by the prosecuting witness was by no mеans convincing. Even so, there was other evidence tending to point to them as the pаrties who followed Britt and stopped him on the highway. Furthermore, there was uncontroverted еvidence that they so admitted. The real controversy involved the conflicting versions of what happened after defendants stopped him. If the statements made by defendants arе to be accepted, then Cecil J ones committed a simple assault and Roscoe J ones committed no offense. If Britt’s version of the occurrence is true, then the defеndants, acting in concert, assaulted Britt and attempted to rob him. They were defeated in this purpose only by the fact Britt had no money on his person when they searched him.
The conflicting contentions in respect thereto were submitted to the jury. It was their prerogative to sift thе evidence and find the facts. This they have done. The testimony is amply sufficient to sustain their verdiсt.
The appellant excepts to that part of the charge in which the court outlinеd the verdicts the jury might return under the second count as submitted to them. Under this exception he, in his brief, insists thаt the court failed to comply with the provisions of G. S. 1-180 in that it did not “state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.”
But an exception to a specific portion of the charge is not suffiсient to present this question unless such portion is in itself fatally defective. There must be an assignment of error which points out specifically wherein the court failed to charge the law arising on the evidence.
S.
v.
Dilliard,
In this and one other excerpt to which exception is entered, the court prefaced its instruction by “If the State of North Carolina has satisfied *405 you from the evidence . . .” Tbе court bad theretofore instructed the jury that the burden was on the State to satisfy them of the dеfendants’ guilt beyond a reasonable doubt, and if it had failed so to do they should return a verdict оf not guilty. The instruction was repeated in connection with each statement to which exception is entered. Thus the charge, considered contextually, fails to disclose prejudicial error.
The second count in the bill of indictment charges that defendant, in or near а public highway, with the use or threatened use of firearms, did feloniously attempt to rob one R. S. Britt. G. S. 14-87. Thе court below submitted the evidence to the jury on the “less degree of the crime chargеd,” to wit, an attempt to commit highway robbery. This is permitted by statute when there is evidence of the “less degree” of the crime charged. G. S., 15-170.
The primary purpose and intent of the Legislature in enacting Chap. 187, P. L. 1929, now G. S. 14-87, was to provide for more severe punishment for the commission оf robbery when such offense is committed or attempted with the use or threatened use of firearms or other dangerous weapons. It does not add to or subtract from the common law offense of robbery except to provide that when firearms or other dangerous wеapons are used in the commission or attempted commission of the offense sentеnce shall be imposed as therein directed.
S. v. Keller,
To sustain the charge alleged in the indictment it was necessary for the State to, and it did, offer evidence of every element neсessary to be proven in order to convict of an attempt to commit highway robbery. On the other hand, evidence of the use of firearms as charged in the indictment was too vague and uncertain to justify the submission of the graver offense. This is evidenced by the verdict of the jury on thе first count. Hence, the court properly followed the procedure authorized by G. S., 15-170.
S. v. Elmore,
The court, it is true, did not define and explain the meaning of “attempt.” The word “attempt” is one оf common usage and means “Act of attempting; an essay, trial, or endeavor; an undertaking; esp., an unsuccessful effort.” Webster’s New Int. Dic., 2d Ed.; “An endeavor to accomplish a crime carried beyond mere preparation for it, but falling short of the ultimate design. The elemеnts are (1) intent to commit a crime; (2) affirmative action in pursuance of that intent, but falling short оf the crime intended.” Callaghan, Cyclopedic Law Dic.;
S. v. Parker,
*406 We have carefully examined the other exceptive assignments of error and find in them no canse for disturbing the verdict.
No error.