State v. Williams

144 S.E.2d 267 (1965)

265 N.C. 446

STATE v. Johnnie WILLIAMS.

No. 168.

Supreme Court of North Carolina.

October 13, 1965.

*268 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Trial Attorney Eugene A. Smith, Raleigh, for the State.

John R. Parker, Clinton, for defendant.

PER CURIAM.

The appellant does not contend the State's evidence was insufficient to carry the case to the jury and to support the verdict.

The appellant assigns as error, however, the failure of the court below to arrest judgment for that the bill of indictment was fatally defective in that it failed to allege one of the requisite elements of the crime of robbery, to wit, the taking with felonious *269 intent to convert the personal property allegedly stolen to defendant's own use.

Robbery at common law is defined as the felonious taking of money or goods of any value from the person of another in his presence, against his will, by violence or putting him in fear. State v. Stewart, 255 N.C. 571, 122 S.E.2d 355; State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Burke, 73 N.C. 83. The gist of the offense of robbery with firearms is the accomplishment of the robbery by the use of or threatened use of firearms or other dangerous weapon. State v. Mull, 224 N.C. 574, 31 S.E.2d 764.

The indictment in the instant case is sufficient to meet the requirements of G.S. § 14-87, and the allegation that the intent to convert the personal property stolen to the defendant's own use is not required to be alleged in the bill of indictment. State v. Brown, 113 N.C. 645, 18 S.E. 51; State v. Stewart, supra; State v. Rogers, 246 N.C. 611, 99 S.E.2d 803.

In the case of State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410, relied on by the appellant, a new trial was granted because the court in its charge to the jury inadvertently failed to explain to the jury what constitutes felonious intent in the law of robbery. In the instant case, the court fully instructed the jury as to what is meant by a felonious taking. Cf. State v. Chase, 231 N.C. 589, 58 S.E.2d 364. This assignment of error is overruled.

Appellant's assignment of error challenging the correctness of the judgment entered on the verdict returned by the jury is well taken and must be sustained.

The jury returned a verdict of guilty of robbery and the court below imposed a sentence of not less than fifteen nor more than twenty years in the State's prison. When, on a charge of robbery with firearms or other dangerous weapon, the jury returns a verdict of guilty of robbery, the maximum sentence that may be imposed is ten years. In re Ferguson, 235 N.C. 121, 68 S.E.2d 792. Cf. State v. Seymour, 265 N.C. 216, 143 S.E.2d 69.

This case is remanded to the Superior Court of Sampson County with directions to vacate the sentence imposed by Judge Morris and to enter in lieu thereof a sentence which in no event may exceed the statutory limit of ten years. The prisoner is entitled to credit thereon for the time served.

The remaining assignments of error present no sufficient prejudicial error to warrant a new trial and they are overruled.

Remanded.