168 S.E.2d 511 | N.C. Ct. App. | 1969
STATE of North Carolina
v.
Leroy Melvin REID.
Court of Appeals of North Carolina.
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, for the State.
J. LeVonne Chambers, James E. Lanning, Chambers, Stein, Ferguson & Lanning, Charlotte, for defendant appellant.
PARKER, Judge.
Appellant assigns as error the overruling of his motion of nonsuit on the charge of armed robbery. G.S. § 14-87 is as follows:
"Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than five nor more than thirty years."
While admitting the State's evidence shows he held a gun and his accomplice a knife at the time they seized their victim and dragged him into the adjoining lot, appellant argues that the evidence also shows that at the moment the robbery actually occurred he did not use or threaten to use these dangerous weapons in a manner "whereby the life of a person is endangered *513 or threatened," and therefore he could only be found guilty of common-law robbery. In support of this argument he points to the testimony of the prosecuting witness who testified as follows:
"Q. No one ever threatened your life to get it, did they?
"A. They threatened my life but not to get the watch and ring."
Appellant's argument ignores the fact that all of the evidence shows that the transactions all occurred as one continuous course of events; that there was ample evidence that defendant and his accomplice held in their hands dangerous weapons when they assaulted their victim; that at the moment the actual robbery occurred it was no longer necessary for them to use or threaten to use their weapons, since they had already physically subdued their victim and were in process of binding his arms. Under these circumstances, there was plenary evidence to submit the charge of armed robbery to the jury.
We have also carefully examined the court's charge on armed robbery and find therein no error. There was no error in the trial, verdict, or judgment sentencing the defendant for the offense of armed robbery.
Appellant assigns as error the overruling of his motion for nonsuit on the charge of kidnapping. In this connection appellant contends that the common-law offense of kidnapping, as heretofore defined by the North Carolina Supreme Court, requires that the victim be carried away over a substantial distance, and that the evidence here shows the victim was dragged only some 75 feet into an adjoining lot. There is no merit in this contention.
In North Carolina there is no statutory definition of the crime of kidnapping. The authoritative definition which has been given by the North Carolina Supreme Court is contained in the case of State v. Lowry, 263 N.C. 536, 541, 139 S. E.2d 870, 874, and is as follows:
"The word `kidnap,' in its application to the evidence in the case at bar, and as used in G.S. § 14-39, means the unlawful taking and carrying away of a person by force and against his will (the common-law definition). State v. Gough, 257 N. C. 348, 126 S.E.2d 118, 95 A.L.R.2d 441; State v. Dorsett, 245 N.C. 47, 95 S.E.2d 90; State v. Witherington, 226 N.C. 211, 37 S.E.2d 497; State v. Harrison, supra (145 N.C. 408, 59 S.E. 867). It is the fact, not the distance of forcible removal of the victim that constitutes kidnapping." (Emphasis added.)
The evidence here was amply sufficient to warrant submitting to the jury defendant's guilt of the crime of kidnapping.
The judge correctly charged the jury as to the definition of the crime of kidnapping, following almost verbatim the definition approved in State v. Lowry, supra. However, after the jury had retired to consider its verdict and had been in the jury room for approximately one hour, it returned and asked for additional instructions as to the definition of kidnapping. Thereupon the court charged the jury as follows:
"Well, with respect to the charge of kidnapping, if you find from the evidence in this case and beyond a reasonable doubt, the burden being upon the State of North Carolina to so satisfy you, that on the 3rd day of September, 1968, the defendant, Leroy Melvin Reid, unlawfully took and carried away from his premises, that is, Neal's premises, the person of Robert Neal, by unlawful physical force, against his will, or did unlawfully seize and unlawfully detain him off of his premises for a period of thirty to forty-five minutes and further find beyond a reasonable doubt that such taking or carrying away or unlawfully detaining the person of Robert Neal was against his will and was unlawful or done without lawful authority and by physical force, then it would be your duty to convict the defendant Reid of *514 the crime of kidnapping as charged in the bill of indictment."
This instruction was in error, in that it would permit the jury to find the defendant guilty of the crime of kidnapping upon a finding that he had unlawfully detained the prosecuting witness without any finding that the body of the victim had been forcibly removed and carried away for any distance whatsoever. Some states have by statute so defined the crime of kidnapping. "Some modern statutes define kidnapping so as to absorb the crime of false imprisonment and tend to obliterate the distinction between the two offenses; others adopt the basic concept that there must be a carrying away of a person from the place where he was seized to some other place." 1 Am.Jur.2d, Abduction and Kidnapping, § 1, p. 160. North Carolina by judicial definition of the crime still follows the concept that some carrying away or transporting of the person of the victim is an essential element of the crime of kidnapping. Even though a part of the instructions given was a correct statement of the law, our Supreme Court has uniformly held that "where the court charges correctly in one part of the charge, and incorrectly in another part, it will cause a new trial, since the jury may have acted upon the incorrect part, and this is particularly true when the incorrect part of the charge is the application of the law to the facts." State v. Gurley, 253 N.C. 55, 58, 116 S.E. 2d 143, 145.
In the trial and judgment sentencing defendant for the crime of armed robbery, we find
No error.
In the case in which defendant was charged with the crime of kidnapping, because of prejudicial error in the charge, defendant is entitled to a
New trial.
MALLARD, C. J., and BRITT, J., concur.