Appeal by defendant from Tillery, Judge. Judgments entered 15 January 1981 in Superior Court, Wayne County. Heard in the Court of Appeals on 12 November 1981.
Hedrick, Judge. Judge Clark concurs. Judge Martin (Harry C.) concurs in part and dissents in part.
Defendant first assigns as error the court's failure to grant defendant's motion to dismiss the charge of armed robbery for insufficiency of the evidence. Since defendant was acquitted of that offense, this assignment of error is groundless.
Defendant's next assignment of error is the court's instruction to the jury on the offense of common law robbery. Defendant argues there was insufficient evidence to permit instruction on that offense in that the State presented no evidence of an essential element of common law robbery, to wit, that the life of the victim of the wrongful taking of property, here Dewey Brogden, was endangered or threatened. Defendant contends that the State's evidence tended to show that only Ellen Sampson's, not Brogden's, life was threatened by defendant.
Common law robbery is the taking of money or goods with felonious intent from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971). Without commenting on whether the endangerment or threat must be posed to the victim of the robbery as opposed to some third person, suffice it to say that evidence in the present case tended to show that defendant accomplished the robbery of personal property from Brogden by endangering or threatening the life of Brogden himself. Defendant was wielding a knife and could at any moment have turned its use towards Brogden if Brogden balked at defendant's demands. Brogden testified that he was scared that defendant might hurt him (Brogden) if given the chance. When there is evidence that the robber is wielding a dangerous weapon, testimony by the victim that he was scared is sufficient to meet any requirement that the victim be endangered or threatened. See State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d
428 (1971). Furthermore, the mere fact that the victim complied with the assailant's demands is itself indicative of fear. State v. Hammonds, 28 N.C. App. 583, 222 S.E.2d 4 (1976). The State, therefore, put on evidence of all essential elements of common law robbery, including the "violence or fear" requirement, and this assignment of error is without merit.
Defendant also assigns as error the court's instructions to the jury on the offense of false imprisonment. Defendant argues that false imprisonment is not a lesser included offense of the offense charged in the indictment, i.e., kidnapping, and therefore should not have been submitted for the jury's consideration. This argument is without merit. "[W]hen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense which is charged in the bill of indictment contains all the essential elements of the lesser." State v. Hunter, 299 N.C. 29, 38, 261 S.E.2d 189, 195 (1980). False imprisonment is a lesser included offense of kidnapping, State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d (1977), aff'd, 294 N.C. 503, 243 S.E.2d 338 (1978), and therefore the court's instruction thereon was not improper. This assignment of error has no merit.
Defendant's next assignment of error is the court's use of a hypothetical illustration in instructions it gave to the jury after a juror requested further elaboration on the "permanent taking" element of common law robbery.
In explaining legal principles to a lay jury, the trial judge's use of illustrations should be carefully guarded to avoid suggestions susceptible of inferences as to facts beyond intended, but the mere use of hypothetical illustrations will not result in vacating the verdict on appeal unless the appellant can show that he was materially prejudiced by their use. Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194 (1946). A judge's charge to the jury is to be construed as a whole, and if, when so construed, it is sufficiently clear that no reasonable cause exists to believe that the jury was misled or misinformed, any exception to it will not be sustained even though the instruction could have been more aptly worded. State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980).
In the present case, the court gave a hypothetical example contrasting a temporary and a permanent taking. Defendant has
in no way shown how the instruction prejudiced him, and in fact, the instruction fairly and correctly presented the law in response to a question of a juror. This ...