State v. Montgomery

12 N.C. App. 94 | N.C. Ct. App. | 1971

PARKER, Judge.

Defendant assigns as error the denial of his motion for nonsuit on the charge of common-law robbery. In this connection he contends that the pistol was taken only to disarm Frazier and the evidence was insufficient to support a finding that it was taken with any felonious intent permanently to deprive the owner of his property. Even assuming, however, that the takers’ immediate purpose may have been to disarm Fraizer so that the pistol could not be used against them, this is not inconsistent with an intent permanently to deprive the owner of his property. “When, in order to serve a temporary purpose of his own, one takes property (1) with the specific intent wholly and permanently to deprive the owner of it, or (2) under circumstances which render it unlikely that the owner will ever recover his property and which disclose the taker’s total indifference to his rights, one takes it with the intent to steal (animus furandi).” State v. Smith, 268 N.C. 167, 150 S.E. 2d 194. While the evidence here does not disclose what ultimately became of the pistol, all of the evidence shows it was forcibly taken from Frazier’s hand while he was being severely beaten on the head and that he has never seen the pistol since. On this evidence it was a permissible inference for the jury to draw that the takers of the pistol harbored an intent not only to disarm Frazier but also to deprive him permanently of his property. Considering the evidence in the light most favorable to the State, the jury could also legitimately find that defendant was present and was actively aiding and abetting when the pistol was taken. There was no error in denying his motion for nonsuit as to the charge of common-law robbery.

The trial court submitted to the jury an issue as to defendant’s guilt of the lesser included offense of an assault inflicting serious injury. Under proper instructions, the jury found defendant guilty of the more serious offense of common-law robbery. In the charge we find no prejudicial error.

While defendant testified that the statement which he signed was not voluntary, no objection was made when it was introduced in evidence against him and he raises no question on this appeal concerning the admissibility of that statement.

In the entire trial we find

No error.

Judges Britt and Morris concur.