State v. Cherry
State v. Cherry
Opinion of the Court
Defendant contends the court erred in refusing to grant his motion to dismiss at the end of all the evidence.
The 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.
G.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).
Admittedly, 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.
Next, defendant assigns as error that portion of the charge which reads as follows:
“Now, 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.”
Defendant 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.
Immediately 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 “or” for “by.” In view of the charge as a whole, it is apparent that the jury could not have misunderstood the court’s language. See State v. Sanders, supra.
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.