State v. Lee, 193 S.E.2d 705

State v. Lee

193 S.E.2d 705

N.C.

1973

Check Treatment

SHARP, Justice.

Thе rape case is before this Court on direct appeal from the Superior Court under G.S. 7A-27 (a). Because the armed-robbеry case was tried at the same time, we certified it for initial appellate review by the Supreme Court under G.S. 7A-81 (a).

Defendant’s first assignment of error is to the following instruction: “If you find from the evidence and beyond a rea *569 sonable doubt that the defendant, Jesse Lee, is guilty of rape as charged in the bill of indictment, it would be your duty to return such a verdict as charged in the bill of indictment.” The contentiоn is that in the “final mandate” the judge did not apply the law to the facts in the case.

Standing alone the preceding instruction would nоt fulfill the mandatory requirements of G.S. 1-180 (1969) that the judge “shall declare ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and explain the law arising on the evidence given in the case.” A charge, however, must be considered contextually as a whole. Lewis v. Barnhill, 267 N.C. 457, 148 S.E. 2d 536 (1966); 7 Strong, North Carolina Index 2d Trial § 33, at 330 (1968). Immediately preceding the challenged instruction the judgе had correctly defined and fully explained each essential element of the crime of rape, and he had also specifically applied the law to the possible factual situations presented by the conflicting evidence. Nothing had been left to the jury “to decide . . . according to its own notions.” Lewis v. Watson, 229 N.C. 20, 24, 47 S.E. 2d 484, 487 (1948).

When considered as a whole it is quite clear that defendant has no cause to complain of his Honor’s instructions upon the rape charge. On the contrary, in certain respects the instruсtions were more favorable to defendant than the evidence warranted.

Defendant’s second and third assignments of error relate to the court’s instructions upon the charge of armed robbery. Assignment No. 2 presents the question whether the judge erred in failing to submit to the jury the question of defendant’s guilt of common law robbery. The jury was instructed to return a verdict of “guilty of robbery with a firearm as charged in the bill of indictment or not guilty.”

The essential difference between armed robbery and common law robbery is that the former is aсcomplished by the use or threatened ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. G.S. 14-87 (1969); State v. Bailey, 278 N.C. 80, 178 S.E. 2d 809 (1971). In a prosecution for armed robbery the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant’s guilt of that crime. If the State’s evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on *570 common law robbery is not required. State v. Carnes, 279 N.C. 549, 184 S.E. 2d 235 (1971); State v. Cox, 201 N.C. 357, 160 S.E. 358 (1931).

Defendant’s denial, not only that he robbed Mrs. Jones by any means whatever but that he ever held a gun on her, constituted no evidence of his guilt of common law robbery. Defendant’s second assignment of error is without merit. State v. Bailey, supra.

Defendant’s third assignment of error pertains to the court’s charge on the elements of armed robbery. The instructiоn was that the jury would find defendant guilty of the robbery charged in the bill of indictment if they were satisfied beyond a reasonable doubt that by endangering or threatening the life of Mrs. Jones with a firearm defendant took her rings from her person, or in her presence, without her voluntаry consent and carried them away; that at the time of the taking defendant knew he was not entitled to take this property and hе intended to deprive her of its use permanently. Defendant asserts that to be guilty of robbery an accused must have taken the property “with a specific intent to deprive the owner of his property permanently and, to convert it to his own use.” He contends that the trial judge committed prejudicial error when he omitted from his enumeration of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍elements of robbery the words italicized within the preceding quotation. This contention is untenable.

Indubitably, the intent to steal is an essential element of robbery, and stealing has often been defined as the taking of the personal property of another with a specific intent on the part of the taker to deprive the owner of his property permanently and to convert it to his own use. See State v. Norris, 264 N.C. 470, 141 S.E. 2d 869 (1965); State v. Lawrence, 262 N.C. 162, 136 S.E. 2d 595 (1964); State v. Lunsford, 229 N.C. 229, 49 S.E. 2d 410 (1948). To define stealing in these words, however, is not a sine qua non to an explanation of robbery.

One whо, knowing that he has no right to do so, takes and carries away the property of another with the intent to deprive the owner of his property permanently and to convert it to his own use is surely guilty of larceny. However, he is no less guilty if, when he took the proрerty, his intention was to convert it to the use of another or to destroy it so that no one *571 could use it. When he takes the property to accomplish a purpose of his own he takes it with the intent to convert it to his own use. To constitute larceny it is not rеquired that the purpose of the taking ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be to convert the stolen property to the pecuniary advantage or cоnvenience of the taker. It is sufficient if the taking be fraudulent and with the intent wholly to deprive the owner of his property. State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966); State v. Kirkland, 178 N.C. 810, 813, 101 S.E. 560, 561 (1919).

In the two cases upon which appellant relies, State v. Lunsford, supra, and State v. Lawrence, supra, the evidenсe for the defendants tended to negate any intent to steal. In Lunsford, the defendants contended they disarmed the prosecuting witness, who was intoxicated, only to keep him from shooting one of them, and that they had no intent to deprive him permanently of his pistol. In Lawrence, the defense was that the defendant was guilty only of forcible trespass; that he had taken from the prosecuting witness’ wallet the exact amount which the witness owed him and which he had said he would be glad to pay him. In both cases a new trial was awarded because the court had failed to explain in certain terms, understandable to a layman, the essential felonious intent implicit in the expression “felonious taking.”

As Justice Clifton L. Moore said in State v. Spratt, 265 N.C. 524, 144 S.E. 2d 569 (1965), “The comprehensiveness and specificality of the definition and explanation of ‘felonious intent’ required in a charge depends on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the facts in the particular case. There must be some explanation in every case. But, where the evidence relied on by defendant tends to admit the taking but to deny that it was with felonious intent, it is essential that the court fully define the ‘felonious intent’ contended for by the State and also explain defendant’s theory as to the intent and purpose of the taking, in order that the jury may understanding!y decide between the contentions of the State and defendant on that point. . . . Where such defenses are specifically interposed and arise on the evidence, defendant is entitled to such explanation of the law as will serve to bring clearly into focus the conflicting contentions.” Id. at 526-27, 144 S.E. 2d at 571-72 (citation omitted) (emphasis added).

In this case defendant denies that he took Mrs. Jones’ rings or that he aided Huff in taking them. The issue was not *572 the intent with which they were taken, but whether they were taken at all.

In the trial below, we find

No error.