{
  "id": 8556774,
  "name": "STATE OF NORTH CAROLINA v. HENRY LEWIS CHERRY",
  "name_abbreviation": "State v. Cherry",
  "decision_date": "1976-06-02",
  "docket_number": "No. 7519SC946",
  "first_page": "599",
  "last_page": "602",
  "citations": [
    {
      "type": "official",
      "cite": "29 N.C. App. 599"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "185 S.E. 2d 158",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
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    {
      "cite": "280 N.C. 81",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8569860
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      "year": 1971,
      "opinion_index": 0,
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        "/nc/280/0081-01"
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    {
      "cite": "184 S.E. 2d 866",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "280 N.C. 154",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8570226
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/280/0154-01"
      ]
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Vaughn concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HENRY LEWIS CHERRY"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nDefendant contends the court erred in refusing to grant his motion to dismiss at the end of all the evidence.\nThe indictment charged that defendant, with the unlawful use of a handgun whereby the life of Cathy Benfield was endangered, did take, steal and carry away $455.14. However, the evidence presented tended to show, and the court in fact charged on attempted robbery with a firearm. Defendant contends there is a fatal variance between the indictment and proof in that a taking was charged and an attempt to take was the subject of the evidence.\n\u201cBy the terms of G.S. 14-87 an attempt to rob another of personal property, made with the use of a dangerous weapon, whereby the life of a person is endangered or threatened, is, itself, a completed crime and is punishable to the same extent as if the property had been taken as intended. (Citation omitted.) Such attempt occurs when the defendant, with the requisite intent to rob, does some overt act calculated and designed to bring about the robbery, thereby endangering or threatening the life of a person. (Citation omitted.)\u201d State v. Price, 280 N.C. 154, 184 S.E. 2d 866 (1971).\nG.S. 14-87 was enacted to cover situations where there was an attempt to take as well as those where there was an actual taking. The attempt now is on equal level with the taking: each offense is of equal gravity. State v. Sanders, 280 N.C. 81, 185 S.E. 2d 158 (1971).\nAdmittedly, there is variance between the allegations and the proof offered, but the variance is not material. The indictment charged all the essential elements of the crime of armed robbery. The offense was complete when the defendant attempted to take the money from the presence of Cathy Griffith Benfield by the means condemned in G.S. 14-87. Proof was offered to support the material allegations. The trial court correctly denied motion for dismissal.\nNext, defendant assigns as error that portion of the charge which reads as follows:\n\u201cNow, as I have said, the defendant has been accused of attempted robbery with a firearm which is attempting to rob or endangering or threatening that other person with a firearm.\u201d\nDefendant argues that this is a prejudicial instruction for it would allow the jury to convict him if it found only that he had endangered Cathy Benfield with a firearm.\nImmediately following the portion in question, the court gave a complete instruction on the elements of attempted armed robbery. The jury was fully apprised of its duty and that body was not confused. The mistake was merely inserting \u201cor\u201d for \u201cby.\u201d In view of the charge as a whole, it is apparent that the jury could not have misunderstood the court\u2019s language. See State v. Sanders, supra.\nDefendant received a trial free of prejudicial error.\nNo error.\nChief Judge Brock and Judge Vaughn concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Elizabeth R. Cochrane, for the State.",
      "Davis, Ford & Weinhold, by Robert M. Davis, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HENRY LEWIS CHERRY\nNo. 7519SC946\n(Filed 2 June 1976)\n1. Robbery \u00a7 2\u2014 indictment charging robbery \u2014 evidence showing attempt to rob \u2014 variance not material\nWhere an indictment charged that defendant actually took money from his victim with the unlawful use of a handgun, but the evidence tended to show that defendant merely attempted to take the money with the use of a handgun, such variance was not material, and the trial court properly denied defendant\u2019s motion to dismiss at the end of all the evidence. G.S. 14-87.\n2. Robbery \u00a7 5\u2014 attempted armed robbery \u2014 improper jury instruction \u2014 subsequent correct instruction \u2014 no prejudice\nDefendant was not prejudiced by the trial court\u2019s instruction that the \u201cdefendant has been accused of attempted robbery with a firearm which is attempting to rob or endangering or threatening that other person with a firearm,\u201d since the court immediately thereafter gave a complete instruction on the elements of attempted armed robbery, and the jury could not have misunderstood the court\u2019s language.\nAppeal by defendant from Rousseau, Judge. Judgment entered 25 June 1975 in Superior Court, Rowan County. Heard in the Court of Appeals 10 March 1976.\nDefendant was tried under a bill of indictment charging him with the armed robbery of one Cathy Griffith Benfield, a violation of G.S. 14-87.\nThe State offered evidence tending to show that on 5 May 1975, in the Bear Poplar community of Rowan County, Cathy Benfield was managing her father\u2019s grocery store. Around 1:45 p.m., Cathy was at the back of the store and Mr. London, an elderly gentleman, was dozing in a chair near the front. Three males entered the store whereupon Cathy walked to the front. The three headed towards the cold drink coolers at the rear of the store and presently, one of them approached the counter at the middle front of the store where Cathy stood. He placed a six pack of beer and a bottle of wine on the counter. After telling Cathy that his friend would pay for the beer and wine, he asked her to change a dollar for him. As she turned to hand him his change she realized that he was pointing a small, silver-colored gun at her. He ordered her to put the money in a bag. Cathy placed over $100.00 out of the cash drawer and around $200.00 out of a billfold containing gas money in a bag and put it on the counter. She noticed that the man wore a toboggan pushed back on his head and recognized him as \u201cBrother Cherry,\u201d a young man who occasionally patronized the store.\nThe three men discussed what to do and one told Cherry to lock Cathy in the bathroom. Cathy entered the bathroom and pushed the door closed. She heard a loud noise followed by the sound of running feet. She pushed the bathroom door open and found Mr. London standing in the store with blood on his face. She called the sheriff and found the bag of money on the counter.\nDefendant offered evidence tending to show that on 5 May 1975 he was in his sister\u2019s house until 3:45 p.m. He placed a call to his mother at 12:31 p.m. that day from his sister\u2019s trailer. He spoke with some relatives who stopped by the trailer at approximately 2:00 p.m. He left the trailer with his sister at 3:45 p.m.\nDefendant admitted having traded at the store in the past, but denied participating in the robbery.\nThe jury returned a verdict finding defendant guilty of attempted robbery with a dangerous weapon. From judgment of imprisonment entered upon the verdict, defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Elizabeth R. Cochrane, for the State.\nDavis, Ford & Weinhold, by Robert M. Davis, for defendant."
  },
  "file_name": "0599-01",
  "first_page_order": 631,
  "last_page_order": 634
}