{ "id": 8553938, "name": "STATE OF NORTH CAROLINA v. THOMAS OSBORNE; - and - STATE OF NORTH CAROLINA v. DANIEL LOWERY, JR.", "name_abbreviation": "State v. Osborne", "decision_date": "1972-01-12", "docket_number": "No. 7126SC724", "first_page": "420", "last_page": "423", "citations": [ { "type": "official", "cite": "13 N.C. App. 420" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "150 S.E. 2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560774 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0167-01" ] }, { "cite": "136 S.E. 2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "262 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566138 ], "year": 1964, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0162-01" ] }, { "cite": "138 S.E. 2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567166 ], "opinion_index": 0, "case_paths": [ "/nc/263/0073-01" ] }, { "cite": "145 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560200 ], "opinion_index": 0, "case_paths": [ "/nc/266/0269-01" ] }, { "cite": "120 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567053 ], "opinion_index": 0, "case_paths": [ "/nc/255/0042-01" ] }, { "cite": "124 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574093 ], "opinion_index": 0, "case_paths": [ "/nc/256/0593-01" ] }, { "cite": "142 S.E. 2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574116 ], "opinion_index": 0, "case_paths": [ "/nc/264/0488-01" ] }, { "cite": "156 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] } ], "analysis": { "cardinality": 429, "char_count": 7216, "ocr_confidence": 0.563, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20597783886242016 }, "sha256": "0d6ba0f7d2fe80d53439910f7655194a8b3a3c8e53077bc7bb348fd4e4f8260f", "simhash": "1:efc1fc63be1fb14e", "word_count": 1251 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Brock and Vaughn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS OSBORNE \u2014 and \u2014 STATE OF NORTH CAROLINA v. DANIEL LOWERY, JR." ], "opinions": [ { "text": "BRITT, Judge.\nDefendants assign as error the denial of their motions to dismiss at the close of all the evidence. In State v. Cutler, 271 N.C. 379, 382, 156 S.E. 2d 679, 681 (1967), the court held:\nUpon a motion for judgment as of nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence. State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169; State v. Thompson, 256 N.C. 593, 124 S.E. 2d 728; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580. All of the evidence actually admitted, whether competent or incompetent, including that offered by the defendant, if any, which is favorable to the State, must be taken into account and so considered by the court in ruling upon the motion. State v. Walker, 266 N.C. 269, 145 S.E. 2d 833; State v. Virgil, 263 N.C. 73, 138 S.E. 2d 777.\nThe evidence presented in this case when considered in that light indicates that defendants were acting in concert; that Lowery, while standing three feet from Alexander with Osborne at his side, pulled a knife; that Osborne put his hand in his own pocket and threatened to get his gun; that Lowery reached in Alexander\u2019s pocket and removed 90 cents in change; and that the prosecuting witness was in fear for his life. We hold that there was sufficient evidence to withstand the motion for non-suit and the assignment of error is without merit.\nDefendants assign as error that portion of the jury charge in which the court instructed as to common law robbery. Defendants contend that in its instructions the court made no proper distinction between the statutory offense of robbery with a dangerous weapon (G.S. 14-87) and common law robbery; that since the instructions on the two offenses were almost the same, the jury was confused and possibly returned a verdict of guilty as charged rather than common law robbery as they could make no distinction in the offenses.\nRobbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Lawrence, 262 N.C. 162, 163, 136 S.E. 2d 595, 597 (1964). G.S. 14-87 creates no new offense; it does not add to or substract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense as set forth in the statute, more severe punishment may be imposed. State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966).\nIn reality, where a weapon which is dangerous within the meaning of G.S. 14-87 is used in a robbery, the only difference between common law robbery and armed robbery as provided by G.S. 14-87 is whether the life of the person robbed is endangered or threatened by the weapon. While the distinction is small, the difference in punishment can be considerable. A careful review of the instructions in the case at bar impels us to conclude that under the facts presented in this case the able trial judge did not make a sufficient distinction between armed robbery and common law robbery. For that reason, defendants are entitled to a new trial.\nAlthough the sufficiency of the bill of indictment against defendant Osborne has not been challenged, and we do not pass upon the question, prior to a retrial of the cases the solicitor might be well advised to give the bill his careful consideration.\nNew trial.\nJudges Brock and Vaughn concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Assistant Attorney General Claude W. Harris for the State.", "W. J. Chandler, Jr., for the defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS OSBORNE \u2014 and \u2014 STATE OF NORTH CAROLINA v. DANIEL LOWERY, JR.\nNo. 7126SC724\n(Filed 12 January 1972)\n1. Robbery \u00a7 4 \u2014 armed robbery \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to go to the jury against both defendants in this armed robbery prosecution where it tended to show that one defendant pulled a knife on the victim, that the second defendant put his hand in his own pocket and threatened to get his gun, and that the second defendant reached in the victim\u2019s pocket and removed 90 cents in change.\n2. Robbery \u00a7 1\u2014 common law robbery defined\nRobbery at common law is the felonious taking of money or goods of another, or in his presence, against his will, by violence or putting him in fear.\n3. Robbery \u00a7 1 \u2014 use of firearms in robbery \u2014 punishment \u2014 G.S. 14-87\nG.S. 14-87 creates no new offense but provides for a more severe punishment when firearms or other dangerous weapons are used in the commission of a robbery.\n4. Robbery \u00a7 1 \u2014 use of dangerous weapon \u2014 difference between common law and armed robbery\nWhere a weapon which is dangerous within the meaning of G.S. 14-87 is used in a robbery, the only difference between common law robbery and armed robbery as provided by G.S. 14-87 is whether the life of the victim is endangered or threatened.\n5. Robbery \u00a7 5 \u2014 instructions \u2014 failure to distinguish between armed and common law robbery\nDefendants in an armed robbery prosecution are entitled to a new trial for failure of the trial court in its instructions to make a sufficient distinction between the offenses of robbery with a dangerous weapon and common law robbery.\nAppeal by defendants from McLean, Judge, 24 May 1971 Session of Mecklenburg Superior Court.\nDefendants were tried on separate bills of indictment for the armed robbery of Herbert Junior Alexander (Alexander). The cases were consolidated for trial.\nThe State\u2019s evidence tended to show: On 2 April 1971 between 5:00 p.m. and 5:30 p.m., the prosecuting witness, Alexander, was unloading his truck at Puckett\u2019s Super Market in Charlotte. One of the defendants came by, picked up some empty racks that Alexander was to carry away and dropped them. The defendants then restacked the racks, Alexander thanked them, hut Lowery told him, \u201cWe can\u2019t live on \u2018thank you.\u2019 That will cost you a yard.\u201d (A yard is slang term for $1.00.) Alexander then stated that he did not have $1.00, but only some change with which to eat. He turned around and heard something pop. Lowery, standing about three feet from him, had a knife in his right hand with the blade open. Osborne was standing to Lowery\u2019s right with his hand in his pocket and stated, \u201cLet me get my gun.\u201d Alexander stated he was in fear of his life when he saw the knife. Lowery then put his hand in Alexander\u2019s pocket and got about 90 cents in change. The knife was still visible. Defendants stood there and counted the money. They took the money against the will and without the consent of Alexander.\nDefendants offered evidence tending to show: Alexander promised to pay them $1.00 for helping him with the merchandise and he only gave them 90 cents, stating that was all the money he had. An argument ensued and they cursed Alexander and he cursed them. Both defendants denied robbing the prosecuting witness.\nDefendants were found guilty of armed robbery as charged, a violation of G.S. 14-87, and each was sentenced to prison for 25 years. From judgment imposing said sentences, defendants appealed.\nAttorney General Robert Morgan by Assistant Attorney General Claude W. Harris for the State.\nW. J. Chandler, Jr., for the defendant appellants." }, "file_name": "0420-01", "first_page_order": 444, "last_page_order": 447 }