State v. Lunsford

*231 Ebvin, J.

The defendants emphasize their exceptions to the charge. They insist, among other things, that the trial judge erred in failing to instruct the jury as to the felonious intent essential to the crime of robbery, and in restricting the jury to the return of either a verdict of guilty of robbery or a verdict of not guilty. The record presently presented compels us to concede that the position of the defendants in these respects is well taken.

Writers upon criminal law' often suggest that robbery is merely an aggravated form of larceny. 54 C. J., Eobbery, section 11. It has been defined with accuracy and clarity as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation.” Miller on Criminal Law, section 123. This definition clearly comports with that sanctioned by our cases.

S. v. Bell, 228 N. C., 659 , 46 S. E. (2d), 834 ;

S. v. Burke, 73 N. C., 83 .

In his charge in the case at bar, the trial judge told the jury with commendable correctness that a person cannot be guilty of robbery in forcibly taking property from the person or presence of another unless the taking is with felonious intent. But he inadvertently failed to explain to the jurors, who were unfamiliar with legal standards, what constitutes the requisite felonious intent in the law of robbery. In the absence of any instruction from the court on this aspect of the case, the jury was necessarily forced to resort to its own notions for the significance of this element of the offense when it passed upon the all-important issue as to whether the defendants acted with felonious intent in taking the pistol from the prosecuting witness.

Inasmuch as an intent to steal is an essential element of the crime of robbery, the judge ought to have told the jury that in robbery, as in larceny, the taking of the property must be with a specific intent on the part of the taker to deprive the owner of his property permanently and to convert it to his own use.

S. v. Sowls, 61 N. C., 151 ;

S. v. Kirkland, 178 N. C., 810 , 101 S. E., 560 ; 54 C. J., Robbery, section 49. It is plain that the judge failed to perform his statutory duty to declare and explain the law as to this substantial feature of the case. G. S., 1-180;

Lewis v. Watson, ante, 20, 47 S. E. (2d), 484 .

The evidence at the trial required the submission of the case to the jury. But under the charge and the testimony the court should have instructed the jury to return a verdict of guilty of robbery, or a verdict of guilty of simple assault, or a verdict of not guilty as to each defendant, depending entirely upon which one of such verdicts it found to be warranted by the facts. This is true because the jury might well have found that the defendants took the pistol without any intent to steal it, but that they were not justified in so doing by the principle of self- *232 protection. In such event, the jury could have convicted the defendants of simple assault as an included or lesser offense. G. S., 15-169, 15-170;

S. v. Bell, supra.

For the reasons set out above, the defendants are awarded a New trial.