STATE v. NATHANIEL PARKER, GEORGE PORTER, GUS PARKER, and JAMES EDWARD McCREE, 262 N.C. 679

HiggiNs, J.

The robbery with firearms statute, G.S. 14-87, under which the defendants were indicted, provides: “Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, instrument, or means whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another ... at any time, either night or day, or who aids or abets such person . . . shall be guilty of a felony and upon conviction shall be punished by imprisonment for not less than five nor more than 30 years.” If all of the elements are present, the offense is complete whether the taking is successful or amounts only to an attempt to take personalty from the victim.

The statute was passed in 1929 following a series of bank robberies, in one of which the police officers appeared on the scene in time to prevent the robbers from getting possession of any money, though one employee of the bank was seriously wounded by gun fire. The statute wisely condemns a perpetrator “who takes or attempts to take personal property.” (emphasis added).

In this case it should be noted that the bill charged that the defendants “did . . . attempt to take . . . the personal property of Erskine Hill, to-wit: money and a pocketbook.” The solicitor’s announcement amounted to a bill of particulars giving notice that in making out the case the State would rely on proof the defendants attempted to take personal property from the victim rather than proof of the actual taking. The solicitor’s announcement neither lessened the degree of guilt charged in the bill nor reduced the power of the court to punish for it.

So great is the offense when life is endangered and threatened by the use of firearms or other dangerous weapons, that it is not of controlling consequence whether the assailants profit much or little, or nothing, from their felonious undertaking. The attempt to take property by the forbidden means, all other elements being present, completes the offense. Hence the defendants may not contend the solicitor’s announcement worked a dismissal of the charge of robbery with firearms and reduced the charge in the bill to an attempt to commit that offense.

The defendants assign as error the following from the judge’s charge: “Now, if the State has satisfied you as to the guilt of one or more or all of the defendants from the evidence and beyond a reasonable doubt on the charge of robbery with firearms, then you would not consider his guilt or innocence as to that defendant or defendants of common law robbery, but if the State has failed to satisfy you from the evidence and beyond a reasonable doubt that firearms or other dangerous implements were used whereby the life of a person was endangered and threatened, then you would not convict either of the defendants on the charge of attempted highway robbery, but you would then consider the guilt or innocence of such defendants — I think I said highway robbery, I meant not convict of statutory robbery, that is robbery with firearms, the charge contained in the bill, but you would then consider the guilt or innocence of the defendant of highway robbery which does not include the element of the use of firearms or other dangerous weapons.” The State offered evidence tending to show that the four defendants, acting in concert, followed and fell upon Erskine Hill and his father, Clarence Hill, with intent to rob them and by the use of a pistol and an axe handle assaulted both; shot Clarence Hill through the kidney and through the shoulder; shot Erskine Hill three times — once through the spine, causing complete paralysis.

The court charged the jury in substance that if it rendered a verdict of guilty under the robbery with firearms bill, it became unnecessary to consider any other possible verdict. The State’s evidence lacked positive proof that the defendants actually took any personal property from Erskine Hill. The attempt to take is sufficient in armed robbery. An attempt to take is not sufficient in common law robbery. The taking must be by violence or intimidation. State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853; State v. Bell, 228 N.C. 659, 46 S.E. 2d 834.

In larceny from the person there must be a taking, though the value of the property is immaterial. G.S. 14-72; State v. Stevens, 252 N.C. 331, 113 S.E. 2d 577. In common law robbery and in larceny from the person the completed offense requires the taking of property; otherwise there is only an attempt to commit the offense. An attempt to commit robbery with firearms is an infamous offense. G.S. 14-3. “An attempt to commit a crime is

an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission.” State v. Surles, 230 N.C. 272, 52 S.E. 2d 880. In this case, if the verdict be considered only for an attempt to commit the crime of robbery with firearms, nevertheless that verdict is sufficient to support the judgment of seven to ten years imposed by the court. However, for the reasons assigned, we are inclined to the view that the conviction was for the major offense. In robbery with firearms the offense requires the taking, or the attempt to take.

A number of our decisions involving robbery with firearms fail to take note of the fact that the offense is complete if the assailant attempts to take the personal property of another by the means condemned by G.S. 14-87. State v. Jones, 227 N.C. 402, 42 S.E. 2d 465; State v. Chase, 231 N.C. 589, 58 S.E. 2d 364; State v. Hare, 243 N.C. 262, 90 S.E. 2d 550. In this case the trial court did not commit error in failing to charge that the jury might return a verdict of guilty of an attempt to commit a common law robbery.

There was no evidence of common law robbery. “It is true that in a prosecution for robbery with firearms, an accused may be acquitted of the major charge and convicted of an included or lesser offense, such as common law robbery, or assault, or larceny from the person, or simple larceny, if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence on the trial. 42 C.J.S., Indictments and Information, §§ 275, 283, 293; S. v. Jones, supra; S. v. Moore, 211 N.C. 748, 191 S.E. 840; S. v. Holt, 192 N.C. 490, 135 S.E. 324; S. v. Cody, 60 N.C. 197.

If the jury believed the testimony in the case under review, however, it was its duty to convict the defendants of robbery with firearms because all of the evidence tended to show that such offense was committed upon the prosecuting witness, Ernest Fox, as alleged in the indictment. There was no testimony tending to establish the commission of an included or lesser crime. The evidence necessarily restricted the jury to the return of one of two verdicts as to each defendant, namely, a verdict of guilty of robbery with firearms upon Ernest Fox, or a verdict of not guilty.

It follows that the court did not err in failing to instruct the jury that they might acquit the defendants of the crime of robbery with firearms charged in the indictment in question and convict them of a lesser offense. S. v. Sawyer, 224 N.C. 61, 29 S.E. 2d 34; S. v. Manning, 221 N.C. 70, 18 S.E. 2d 821; S. v. Cox, 201 N.C. 357, 160 S.E. 358.” State v. Bell, 228 N.C. 659, 46 S.E. 2d 834. In this case, all the evidence shows the assaults on Erskine Hill with the pistol and axe handle were committed in connection with, as a part of, and included in the robbery.

A conviction of that charge includes all elements of assault with a deadly weapon. This Court, ex mero motu, takes notice of the duplication, quashes the indictment charging the assault, sets aside the verdict, and arrests the judgment. We have examined the defendants’ several assignments of error and find them without merit. On the Robbery with Firearms Charge ■ — • No error. On the Assault with a Deadly Weapon Charge- — Judgment arrested.