State v. . Holt

*492 BeogdeN, J. At tbe conclusion of bis Honor’s charge, counsel for defendants requested tbe court to charge tbe jury that if it should be found that tbe money was paid voluntarily by tbe State’s witness to tbe defendant, Bob Holt, and that after tbe payment there was an altercation, and tbe defendant, Bob Holt, struck tbe witness with a pistol, that this would constitute only an assault with a deadly weapon. Tbe trial judge stated: “I think my charge fully covers that. I have instructed them that highway robbery constitutes tbe taking by violence and force, and before you can convict these defendants you must find it was taken by violence and force.” Counsel for defendants thereupon addressed this question to tbe judge: “Did your Honor charge relative to tbe fact that they could be convicted of assault with a deadly weapon' in this matter?” Tbe judge replied, “No, sir.” Tbe only question submitted to tbe jury by tbe trial judge in bis charge was, whether or not tbe defendants, Bob Holt and Hassell Holt, or either of them was guilty of robbery, and whether or not Byron Gibson and Charles Holt were present, aiding and abetting in tbe perpetration of tbe crime. Tbe charge of tbe court concluded with these words: “Now, as I stated, ge.ntlemen, you may convict one or all of these defendants as you may find tbe facts to be, under tbe charge of tbe court, or you may acquit tbe one or all of them, as you may find tbe facts to be under tbe charge of tbe court.” Tbe request of defendants’ counsel that tbe court charge tbe jury that they could find tbe defendants guilty of an assault with a deadly weapon was not in writing, and hence did not comply with C. S., 565, and tbe trial judge was at liberty to disregard it. But, was it tbe duty of tbe trial judge, under tbe evidence, to present that phase of tbe case, irrespective of a proper request from counsel for defendants?” C. S., 4639, provides as follows: “On tbe trial of any person for rape, or any felony whatsoever, when tbe crime charged includes an assault against tbe person, it is lawful for tbe jury to- acquit of tbe felony and to find a verdict of guilty of assault against tbe person indicted, if tbe - evidence warrants such finding, etc.” Lord Mansfield defines robbery thus: “A felonious taking of property from tbe person of another by force.” Blackstone defines it as “tbe felonious and forcible taking from tbe person of another of goods or money of any value by violence or putting him in fear.” To constitute highway robbery, it is only necessary to further charge and prove that tbe crime was committed in or near a highway. S. v. Burke, 73 N. C., 83; S. v. Brown, 113 N. C., 645. It is obvious, therefore, that tbe crime charged in tbe bill of indictment includes an assault against tbe person, and, this being true, tbe statute, C. S., 4639, makes it lawful “for tbe jury to acquit of tbe felony and to find *493 a verdict of guilty of assault against the person indicted, if the evidence warrants such finding.” Does the evidence in this case warrant such finding? The evidence for the State makes out a crime for highway robbery only, but the evidence of defendants, if believed, tends to show that there was no robbery at all, for that the State’s witness voluntarily paid the money to the defendant, Holt, and, after such voluntary payment, was thereafter assaulted with a deadly weapon. This evidence warranted the submission to the jury, of the question of assault with deadly weapon; and if the evidence, in such cases, warrants it, the trial judge must submit that phase of the case to the jury whether properly requested or not. In S. v. Hill, 181 N. C., 558, the defendant was indicted for assault with intent to commit rape. The evidence was inconclusive as to the intent to commit rape, and, upon the conclusion, counsel for the defendant requested the court to acquit the defendant. In discussing this phase of the case, Justice Walker says: “We cannot grant the nonsuit, as the defendant could have been convicted of an assault the same as if it had been separately charged in an indictment. C. S., 4639.” In S. v. Williams, 185, N. C., 685, the defendant was charged with rape, and his counsel requested the court to charge the jury that there were five verdicts that might be returned under the indictment, to wit: (1) Rape; (2), assault with intent to commit rape; (3), assault with deadly weapon; (4), assault upon a female; (5), not guilty. The trial judge refused to give this instruction, and the defendant excepted. In discussing this exception, Justice Walker says: “The instruction requested by the prisoner should have been given, at least substantially, and if not given, or if it had not been asked for, the judge, of his own motion, should have submitted to the jury proper instructions as to the commission of a lesser offense than that charged in the bill of indictment, and his failure to do so even without an appropriate prayer by the prisoner was error.” (Citing C. S., 4639-4640.) In S. v. Nash, 109 N. C., 824, it is held that “where there was a serious conflict between the testimony of prosecutrix and that of defendant, it was erroneous to restrict the jury to either the'theory of the State or to that of the defendant, as they may predicate their findings upon a hypothesis not consistent with either theory.” S. v. Merrick, 1 71 N. C., 788; S. v. Allen, 186 N. C., 302; S. v. Efird, 186 N. C., 482. The attorney-general, with his usual candor and frankness, in discussing the failure of the court to charge the jury as to whether or not the defendants could be convicted of an assault with a deadly weapon, says: “This, in reality, presents a serious question, but we submit that *494 while the evidence of the prosecuting witness showed an assault with the deadly weapon upon him, that this very assault was part of the means used by the defendant, Bob Holt, to consummate the highway robbery.” This identical contention appears in S. v. Williams, 185 N. C., 685. The contention was a's follows: “The State contends that, while the evidence of the prosecuting witness showed an assault with a deadly weapon upon the prosecutrix, yet this very assault was part of the means used by the defendant to force her.” Justice Walker, referring to this contention, says: “But we are unable to agree with this contention of the State, or to decide according to it; but our opinion is, and we so hold that the substance, at least, of the prayer should have been given to the jury, and in failing to do so, the court committed an error.” For the error specified, in failing to submit to the jury the phase of the case, involving assault with a deadly weapon, there must be a New trial.