{
  "id": 8653762,
  "name": "STATE v. PRESTON BROWN",
  "name_abbreviation": "State v. Brown",
  "decision_date": "1893-09",
  "docket_number": "",
  "first_page": "645",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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    {
      "cite": "104 N C., 874",
      "category": "reporters:state",
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    {
      "cite": "60 N. C., 197",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "89 N. C., 469",
      "category": "reporters:state",
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      "cite": "73 N. C., 83",
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        8685329
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  "last_updated": "2023-07-14T19:27:11.999452+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. PRESTON BROWN."
    ],
    "opinions": [
      {
        "text": "Cbaek, J.:\nUpon inspection of the transcript it appearing that, though the \u201ccase on appeal\u201d recited that there was a verdict of guilty and judgment, the record proper failed to show that there had been a trial by jury and to set out the sentence of the Court below, this Court ex mero mota directed an instanter certiorari to suppl}1- the defect, which has now been done.\nThe indictment sets out two counts, one for highway robbery, second for an attempt to commit the same. The ver-diet found the defendant guilty on the first count. It is therefore unnecessary to consider the exception made to the second count. But had the defendant been convicted of the attempt to commit highway robbery, the first count, if good, would have supported the verdict since the Act of 1891, ch. 205, \u00a7 2, which provides: \u201cUpon the trial of any indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.\u201d This statute is a copy of that in force in England and in New York and other States. It extends to all crimes the provision which, to a more limited extent, was already in force in this State, by virtue of chapter 34, Acts 1885, and indeed at common law. Wharton Crim. PI. and Pr. (9th Ed.), 246, 465. The joinder of a count for a lesser offence or an attempt is now mere surplusage.\nThe objections to the first count raised by motion to quash and renewed after verdict by a motion in arrest of judgment were:\n\u201c 1. For that there was no value of the money designated in the bill.\u201d\nIn an indictment for this offence, the value or description of the article taken or attempted to be taken is not material, for the gist of the offence is not the taking, but a taking by putting in fear or by force. State v. Burke, 73 N. C., 83, citing Rex v. Bingley, 5 C. & P., 602. But, in fact, the charge of \u201c ten dollars in money \u201d is an allegation of \u201c the value of ten dollars,\u201d since money is the measure of values. McCarty v. State, 127 Ind., 223. Indeed, the description would be sufficient under our statute, even in an indictment for larceny, and would be sustained by proof of the theft of coin or bank or treasury notes. State v. Freeman, 89 N. C., 469; The Code, \u00a7 1190.\n\u201c2. That the word steal nor any equivalent word is charged in the bill.\u201d\nIt is not necessary that it should be. The indictment is a copy of the form given in Wharton Pr., 410. Among the many definitions given of robbery, probably the best is that by Lord Mansfield : \u201c A felonious taking of property. from the person of another by force.\u201d Rex v. Donally, 2 East P. C., 715, 725, or Blackstone\u2019s (4 Bl. Com., 242): \u201cThe felonious and forcible taking from the person of another of goods or money to any value by violence or putting him in fear.\u201d To make it highway robbery it is only necessary further to charge and prove that it was committed \u201c in or near a highway.\u201d It is true a defendant acquitted of this offence, because violence or putting in fear is not proved, may be convicted of larceny. State v. Cody, 60 N. C., 197; State v. Halford, 104 N C., 874. But the word \u201csteal\u201d is not an indispensable word like \u201c feloniously,\u201d either in this or an indictment for larceny. As to either, the words \u201c feloniously did take and carry away \u201d are a sufficient allegation in this respect. The addition of the word \u201c seize,\u201d i. e., \u201c feloniously did seize, take and carry away,\u201d is a peculiarly appropriate substitute in aii indictment for this offence, for the word \u201csteal,\u201d which is tautplogy and a mere repetition of the idea embraced .in the words \u201c feloniously take and carry away.\u201d\n\u201c3. That no force is charged therein.\u201d\nThe charge that the defendant \u201cdid make an assault,\u201d * * * and \u201c put in bodily fear and danger of his life,\u201d and \u201c then and there feloniously and violently did seize, take and carry away \u201d ten dollars in money from the prosecutor, is a very explicit allegation of force. Indeed, the words \u201c feloniously and violently \u201d were of themselves sufficient. State v. Cowan, 29 N. C., 239, 250. But this indictment goes beyond that and beyond the other words above quoted, and even adds, out of abundant caution, the express words, \u201c with force and arms,\u201d which have been held unnecessary in an indictment for any offence for three centuries and a half. State v. Harris, 106 N. C., 682, 687.\nNo Error.",
        "type": "majority",
        "author": "Cbaek, J.:"
      }
    ],
    "attorneys": [
      "The Attorney General, for the State.",
      "No counsel, contra."
    ],
    "corrections": "",
    "head_matter": "STATE v. PRESTON BROWN.\nIndictment, Sufficiency of \u2014 Highway Robbery \u2014 Joinder of Counts for Higher and Lower Offence.\n1. Since the Act of 189L (chapter 205, section 2), the joinder in an indictment for an offence of a count for a lesser offence, or for an attempt to commit the same, is mere surplusage.\n2. In an indictment for highway robbery the value or description of the article taken, or attempted to be taken, is not material, since the gist of the offence is not the taking but a taking by putting in fear or by force.\n3. Inasmuch.as money is the measure of values, a charge in an indictment of taking \u2018 \u2018 ten dollars in money \u201d is an allegation- of taking \u201c the value of ten dollars.\u201d (The Code, \u00a1j 1190.)\n4. A charge in a bill of indictment for robbery that the defendant \u201c did make an assault\u201d and \u201c put in bodily fear and danger of his life,\u201d and \u201c then and there feloniously and violently did seize, take and carry away ten dollars in money from the prosecutor,\u201d is an explicit allegation of force. Indeed, the words \u201cfeloniously and violently \u201d were of themselves sufficient.\nIndictment for highway robbery, tried before Hoke, J., and a jury, at Spring Term, 1893, of Edgecombe Superior Court.\nThe defendant was convicted, and- appealed. The facts appear in the opinion.\nThe Attorney General, for the State.\nNo counsel, contra."
  },
  "file_name": "0645-01",
  "first_page_order": 673,
  "last_page_order": 675
}