State v. Hammonds

BROCK, Chief Judge. Defendant first argues that his motion for nonsuit should have been allowed on the grounds that the State’s evidence fails — 584 — to establish an assault. The State’s witness Gaut testified: “[H]e said ‘O.K. open your register’ and I hit the total button and stepped back ... I was scared when he came in and asked me for the money. The fact that he asked me for the money scared me ... I wasn’t about to refuse him the money and suffer the consequences . . . But I knew that he was serious about it, because he was standing in my face staring at me as if I had done something wrong. The way he said it — ‘O.K., open your register’ — that was enough to let me know he was not joking.” The offense of robbery has been defined many times as the taking of money or goods with felonious intent from the person of another, or in his presence, against his will, by violence or putting him in fear. 6 Strong, N. C. Index 2d, Robbery § 1, p. 678. “It is not necessary to prove both violence and putting in fear — proof of either is sufficient.” State v. Watson, 283 N.C. 383, 196 S.E. 2d 212 (1973) ; see also State v. Moore, 279 N.C. 455, 183 S.E. 2d 546 (1971). “Generally, the element of force in the offense of robbery may be actual or constructive. Actual force implies physical violence. 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.’ ” (Citation omitted.) State v. Norris, 264 N.C. 470, 141 S.E. 2d 869 (1965). “Moreover, actual fear need not be strictly and precisely proved, since the law will presume fear if there appears to be just grounds for it. And the mere fact that the victim complied with the assailant’s demands is itself indicative of fear.” 67 Am. Jur. 2d, Robbery § 22, p. 43. It seems clear from the evidence that the victim in this case, State’s witness Gaut, opened the cash register and parted with the money because of fear for her safety. Surely she was — 585 — not required to wait for defendant to commit a battery upon her. This assignment of error is overruled. Defendant next argues that the trial judge committed error in his explanation of one of the elements of common law robbery. The trial judge instructed the jury that the taking of the money must be “by the use of force or threatened use of immediate force.” We see no prejudice to defendant by this instruction. It appears appropriate for the circumstances of this case. We note that this charge is taken from N.C.P.I. — Crim. 217.10, which lists six elements of the offense of common law robbery. The sixth element being “that the defendant used force or threatened immediate use of force to obtain the property.” It seems that this instruction places a heavier burden on the State than is required by the long standing and often approved instruction that the taking must be by violence or putting the victim in fear. Putting the victim in fear could be accomplished by means other than an actual “threatened immediate use of force.” In our opinion defendant had a fair trial free from prejudicial error. No error. Judges Parker and Arnold concur.