The STATE, Petitioner, v. Sally Caulder PARKER and Timothy Kirby, Respondents.
No. 25538.
Supreme Court of South Carolina.
Heard May 15, 2002. Decided Oct. 14, 2002.
571 S.E.2d 288
Katherine Carruth Link, of Columbia; and the South Carolina Office of Appellate Defense, of Columbia, for respondents.
Justice MOORE:
We granted certiorari to review the Court of Appeals’ decision that grand larceny is not a lesser-included оffense of armed robbery. We affirm in result.
FACTS
Respondents were indicted for armed robbery for perpetrating a sham armed robbery of a convenience store where respondent Sally Parker worked. At the close of the Statе‘s case at trial, respondents moved for a directed verdict on the armed robbery charge. The trial court granted the motion on the armed robbery charge, but stated he would charge the jury on the lesser-included offense of grand larceny. No
The Court of Appeals, in a two to one decision, vacated respondents’ convictions, finding grand larceny was not a lesser-included offense of armed robbery. The majority found the 1993 amendments to
The dissent felt the Court of Appeals should not be passing upon this issue because this Court had already held that grand larceny is a lesser-included offense of armed robbеry, a ruling which the dissent felt was binding on the Court of Appeals. He further stated that
ISSUE
Is grand larceny a lesser-included offense of armed robbery?
The circuit court does not have subject mattеr jurisdiction to convict a defendant of an offense unless there is an indictment which sufficiently states the offense, the defendant waives presentment, or the offense is a lesser-included offense of the crime charged in the indictment. State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001). The test for determining when an offense is a lesser-included offense of another is whether the greater of the two offenses includes all the elements of the lesser offense. State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000). If the lesser offense includes an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997).
Larceny involves the taking and carrying away of the goods of another, which must be accomplished against the will or without the consent of the other. State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979). Specifically, grand larceny is the felonious taking and carrying away of the goods of another, where the value exceeds $1,000. See State v. Moultrie, 283 S.C. 352, 322 S.E.2d 663 (1984) (grand larceny is felonious taking and carrying away of goods of another where value exсeeds $200).3 Robbery is defined as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988); State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984) (robbery is felonious taking and carrying away of goods of another, accomplished against will or without consent of other with force); State v. Brown, supra (same). Armed robbery occurs when a person commits robbery while armed with a deadly weapon. Id.
Larceny has been found to be a lesser-included offense of robbery by this Court on several occasions. See State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989) (petit larceny is
The cases of State v. Lawson, Young v. State, and State v. Ziegler are overruled to the extent they found grand larceny to be a lesser-included offense of robbery. The monetary value of the goods taken is an element of the offense of grand larceny. Sеe Johnson v. State, 319 S.C. 62, 459 S.E.2d 840 (1995) (grand larceny involved taking and carrying away of goods valued at $200 or more; value is element of grand larceny offense); State v. Ates, 297 S.C. 316, 318, 377 S.E.2d 98, 99, n. 1 (1989) (in grand larceny prosecution, value is critical element; it is State‘s burden to prove value of stolen goods exceeds $200); State v. Moultrie, supra (defining grand larceny as felonious taking and carrying away of goods of another, where value exceeds $200); State v. Humphery, 276 S.C. 42, 274 S.E.2d 918 (1981) (trial court did not abuse discretion in allowing State to reopen case and prove value, аn essential element of grand larceny); State v. Smith, 274 S.C. 622, 266 S.E.2d 422 (1980) (grand larceny is felony which includes all elements of lesser offense of petit larceny except that grand larceny involves theft of goods valued at fifty dollars or more; State must present credible evidence establishing each element of crime charged); State v. Bethea, 126 S.C. 497, 120 S.E. 239 (1923) (to convict of grand larceny there must be proof property was worth $20 or more).
The indictments in this case charge armed robbery, but also appear to describe grand larceny.5 However, the trial court lacked subject matter jurisdiction to sentence rеspondents on grand larceny because the indictments only specifically charged armed robbery, which does not include all the elements of grand larceny. See State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981) (conviction may be had of an offense different from the one specifically charged only when such offense is essential element of that charged and only when greater offense charged includes all legal and factual elements of lesser offense), overruled in part on other grounds by State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000); State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974) (same). See also State v. Owens, supra (court does not have subject matter jurisdiction to convict defendant unless offense is lesser-included offense of crime charged in indictment).
Accordingly, because the trial court lacked subject matter jurisdiction to convict respondents of grand larceny, the Court of Appeals’ decision is AFFIRMED IN RESULT.
TOAL, C.J., WALLER and PLEICONES, JJ., concur.
BURNETT, J., dissenting in a separate opinion.
JUSTICE BURNETT (dissenting):
I respectfully dissent. In my opinion, grand larceny is a lesser included offense of armed robbery and, therefore, the trial judge had subject matter jurisdiction to convict respondents of grand larceny.
Robbery is the felonious taking and carrying away of the goods of another against thе will or without consent of the other with force. State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984). Armed robbery occurs when a person commits robbery while armed with a deadly weapon. Id. Robbery is a lesser included offense of armed robbery. Id.
Larceny is the felonious taking and carrying away of the goods of another against the will or without thе consent of the other. State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979); State v. Sweat, 221 S.C. 270, 70 S.E.2d 234 (1952). See W. McAninch & W. Fairey, The Criminal Law of South Carolina 246 (1995) (“South Carolina continues to use the standard common law definition of larceny ...“).
Relying on prior opinions which state value is an element of grand larceny,1 the majority concludes grand larceny is not a lesser included offense of robbery because value is not an element of robbery. None of the cited cases, however, compared the elements of robbery with grand larceny.2
Instead, the Court has already determined that grаnd larceny is a lesser included offense of robbery. In Young v. State, 259 S.C. 383, 386, 192 S.E.2d 212, 214 (1972), the Court noted
It is my oрinion the terms “grand” and “petit” are not elements of either grand or petit larceny, but rather distinguish the two sub-categories of the crime of larceny for sentencing purposes. While the determination of whether a particular larceny is “grand” or “petit” is a matter for the trier of fact, “grand” or “petit” larceny do not constitute unique substantive crimes but rather sub-categories of the crime of larceny. See W. McAninch and W. Fairey, The Criminal Law of South Carolina, supra (“The basic South Carolina larceny statute does very little to define the offense; the statute is primarily concerned with providing penalties for the different categories of the offense, depending on the value of the property taken.“).
The majority‘s conclusion will permit the trial court to convict and punish a defendant for both robbery and larceny arising out of the same act without violating double jeopardy. This holding contravenes the precedent of State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989), State v. Harkness, 288 S.C. 136, 341 S.E.2d 631 (1986), and State v. Lawson, supra. Moreover, it defies common sense because larceny is subsumed in the offense of robbery; larceny is robbery accomplished without force. See State v. Brown, supra.
Because it is my opinion grand larceny is a lesser included offense of armed robbery, I would reverse the Court оf Appeals’ decision and reinstate respondents’ grand larceny convictions.