State v. . Sawyer

WiNBORNB, J. Defendants in. tbe main present and stress for error three points : 1. It is’ contended that tbe court should have nonsuited tbe case, (a) “because no force was shown to have been used,” and (b) that there is a fatal variance between tbe indictment and tbe evidence in that the indictment charges defendants with taking $14.00 in money of tbe goods and chattels of LaBrueque, Sipes and Oliverine, and tbe evidence shows that LaBrueque lost $10,00, Oliverine $3.40, and Sipes $3.60, and neither bad any interest in tbe money of tbe other, and tbe amount taken totaled *65 $17.00 and not $14.00 as charged, and in that the evidence shows no joint taking. As to the first ground for nonsuit: The charge against defendants is a common law offense. Decisions of this Court with regard thereto adhere to the principle that upon an indictment for highway robbery at common law it is not necessary to prove both violence and putting in fear — proof of either is sufficient. S. v. Burke, 73 N. C., 83; S. v. Brown, 113 N. C., 645, 18 S. E., 51; S. v. Holt, 192 N. C., 490, 135 S. E., 324. Generally the element of force in the offense of robbery may be actual or constructive. Although actual force implies personal violence, the degree of force used is immaterial, so long as it is sufficient to compel the victim to part with his property or property in his possession. On the other hand, under constructive force are included “all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking ... No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.” 46 Am. Jur., 146. Applying these principles to case in hand, the evidence, taken in the light most favorable to the State as we must do in considering a motion for judgment as in case of nonsuit, is sufficient to take the case to the jury. From the words used and acts done under the circumstances portrayed in evidence for the State, a robbery is manifest. The term “shake-down” has in slang a well understood meaning. According to Webster, when used as a verb, it means “to force (one) to give up money . . .”; and as a noun, “shake-down” is an “act or process of shaking down, hence, slang, an instance or means of depriving one of money by persuasion or compulsion.” In the case in hand the evidence tends to show that the five men were acting in concert. The number of them and their words, acts and attitude assumed toward the sailors are such as in common experience are likely to create an apprehension of danger and to induce a man to part with his property for the sake of his person. The jury could reasonably infer therefrom at least that the money was taken from the sailors through fear. As to the second ground for nonsuit: In an indictment for robbery the kind and value of the property taken is not material. The gist of the offense is not the taking, but a taking by force or the putting in fear. S. v. Burke, supra, S. v. Brown, supra. Moreover, in an indictment for *66 robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property. See 54 C. J., 1039, 46 Amer. Jur., 143. For these reasons there is no variance. The authorities cited by defendants are distinguishable. 2. The point is made that the testimony of the witness Laws, a corporal of the State Highway Patrol, that Sipes, the sailor who was not present at the trial, had identified the defendants as participants in the alleged robbery of the three sailors, is hearsay and incompetent. Conceding that the evidence'may have been incompetent on direct examination, it was brought out on redirect examination in explanation of testimony elicited under cross-examination by defendants. For this purpose it was competent. S. v. Orrell, 75 N. C., 317; Jordan v. Motor Lines, 182 N. C., 559, 109 S. E. 566, and cases cited. 3. The court having instructed the jury that, as to each defendant, one of two verdicts, guilty as charged, or of not guilty, might be returned, defendants contend that upon the evidence in the case, the court erred in failing to further instruct the jury that a verdict might be rendered of guilty of an attempt to commit the crime charged, or guilty of a lesser degree of the same offense, or guilty of an assault. In support of this contention defendants invoke the provisions of G. S., 15-169, formerly C. S., 4639, to the effect that on the trial of any person charged with a felony, and the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding. Defendants also invoke in support of this contention the provisions of G. S., 15-170, formerly C. S., 4640 relating to conviction of less degree or of an attempt to commit the same crime. They rely upon the application of the statutes in the case of S. v. Holt, supra. That case is distinguishable from the one in hand. There, wh’ile the evidence for the State made out a crime for highway robbery only, the evidence of defendants tended to show that there was no robbery at all for that the State’s witness voluntarily paid the money to defendant, Holt, and, after such voluntary payment, was thereafter assaulted. Here the evidence for the State tends to show the crime of robbery only, and the defense of defendants is that of an alibi. No contention was made by defendants in the trial court that upon the evidence offered the jury should render against them a verdict of guilty of a lesser degree of the same offense, or guilty of an attempt to commit the offense so charged, or guilty of an attempt to commit a less degree of the same crime, or guilty of an assault. In the case of S. v. Cox, 201 N. C., 357, 160 S. E., 358, Connor, J., speaking for the Court as to provisions of G. S., 15-170, then C. S., 4640, states that “the statute is not applicable, where, as in the instant *67 ease, all the evidence for the State, uncontradicted by any evidence for the defendant, if believed by the jury, shows that the crime charged in the indictment was committed as alleged therein.” And, concluding, it is there said: “Where all the evidence at the trial of a criminal action, if believed by the jury, tends to show that the crime charged in the indictment was committed as alleged therein, and there is no evidence tending to show the commission of a crime of less degree, it is not error for the trial court to fail to instruct the jury 'that they may acquit the defendant of the crime charged in the indictment and convict him of a crime of less degree,” citing S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605. See also S. v. Jackson, 199 N. C., 321, 154 S. E., 402; S. v. Vick, 213 N. C., 235, 195 S. E., 779; S. v. Hairston, 222 N. C., 455, 24 S. E. (2d), 342, and cases cited. In these cases the sole defense was that of an alibi, and it is held in S. v. Jackson, supra, that the provisions of G. S., 15-169, and -170, then C. S., 4639 and 4640, apply only where there is evidence tending to show defendant is guilty of a crime of lesser degree than that charged in the indictment, citing cases. After careful consideration of all assignments of error, we are of opinion that the case was one for the jury, and-that no prejudicial error was committed on the trial. Hence, in the judgment below we find No error.