{
  "id": 8565700,
  "name": "STATE v. GILBERT ACREY",
  "name_abbreviation": "State v. Acrey",
  "decision_date": "1964-05-20",
  "docket_number": "",
  "first_page": "90",
  "last_page": "91",
  "citations": [
    {
      "type": "official",
      "cite": "262 N.C. 90"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T22:57:24.361559+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. GILBERT ACREY."
    ],
    "opinions": [
      {
        "text": "PER Curiam.\nThe court held the bill of indictment charged the crime of larceny, to wit, the larceny of thirty-five cents from the person of Russell Wheeler. See G.S. 14-72. We agree. Appellant\u2019s contention that the bill of indictment charges the crime of common-law robbery is untenable. The words, \u201cwith force and arms,\u201d constitute a formal phrase traditionally included in bills of indictment. See G.S. 15-155. They have no significance as an element of the specific crime charged in the bill of indictment.\nThe court charged correctly as to all essential elements of the crime of larceny. Appellant contends the court erred by failing to instruct the jury as to the additional elements necessary to constitute the crime of common-law robbery. Since the bill of indictment did not charge common-law robbery, appellant\u2019s said contention is without merit.\nThe State\u2019s evidence tended to show appellant obtained the thirty-five cents from Wheeler by seizing him, slapping him and putting him in fear. Under the court\u2019s instructions, the jury was required to so find as a prerequisite to a verdict of guilty as charged. These instructions may have placed too great a burden upon the State but were not prejudicial to appellant.\nAppellant did not testify. Cook, appellant\u2019s codefendant, was the only witness for the defense. Cook\u2019s testimony tended to show appellant, a pedestrian, accused Wheeler of reckless driving; that a quarrel ensued in the course of which appellant slapped Wheeler; and that \u201cabout ten minutes\u201d later, when relations were amicable, Wheeler freely and voluntarily loaned thirty-five cents to appellant. Thus, the slapping incident to which Cook\u2019s testimony refers did not occur on the occasion appellant got the thirty-five cents from Wheeler.\nThe court instructed the jury to return a verdict of guilty as charged or a verdict of not guilty. Appellant contends, citing G.S. 15-169 and G.S. 15-170, that the court should have instructed the jury that they might return a verdict of guilty of an assault. The contention is untenable. An assault is not a lessor degree of the crime charged in the bill of indictment.\nWe commend appellant\u2019s courUappointed counsel for his diligence and ingenuity in presenting this appeal. However, after careful consideration, we are of opinion, and so decide, that appellant\u2019s assignments do not disclose prejudicial error.\nNo error.",
        "type": "majority",
        "author": "PER Curiam."
      }
    ],
    "attorneys": [
      "Attorney General Bruton and Deputy Attorney General McGalliard for the State.",
      "Jerry L. Jarvis for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. GILBERT ACREY.\n(Filed 20 May 1964.)\n1. Larceny \u00a7 4; Robbery \u00a7 2; Indictment and Warrant \u00a7 9\u2014\nAn indictment charging that defendant at a specified time and place did \u201cwith force and arms\u201d feloniously steal, take, and carry away from a person specified a sum of money, charges the crime of larceny and not that of robbery, G.S. 14-72, the words \u201cwith force and arms\u201d being merely a formal phrase traditionally included in bills of indictment and having no significance as an element of the specific crime charged.\n2. Larceny \u00a7 8; Assault and Battery \u00a7 16; Criminal Law \u00a7 109\u2014\nAssault is not a less degree of the crime of larceny from the person, and therefore in a prosecution for larceny the court is not required to submit the question of defendant\u2019s guilt of assault, even though there be evidence thereof.\nAppeal by defendant from Latham,, J., October 1963 Criminal Session of Dukham.\nCriminal prosecution on the following bill of indictment:\n\u201cSTATE OF NORTH CAROLINA SUPERIOR COURT\n\u201cDURHAM COUNTY October Term, A.D., 1963\n\u201cThe Jurors for the State upon their oath present, that Gilbert Acrey & Gordon Cook late of the County of Durham, on the 2nd day of October, in the year of our Lord one thousand nine hundred sixty-three, with force and arms, at and in the County aforesaid, did wilfully, unlawfully and feloniously steal, take and carry away from the person of Russell Wheeler the sum of 35 Cents in Lawful U. S. Money, of the value of 35/100 . . . (35c) Dollars, of the goods, chattels and moneys of one Russell Wheeler then and there being found, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.\u201d\nDefendants pleaded not guilty. As to each defendant, the verdict was \u201cguilty as charged.\u201d Judgments imposing prison sentences were pronounced. Defendant Acrey appealed.\nAttorney General Bruton and Deputy Attorney General McGalliard for the State.\nJerry L. Jarvis for defendant appellant."
  },
  "file_name": "0090-01",
  "first_page_order": 134,
  "last_page_order": 135
}