Summary
observing that the measure of profit to the offender "is not of controlling consequence," but, rather, the offense is complete when there is an attempt to take property by means of a dangerous weapon endangering or threatening life
Summary of this case from State v. DavisOpinion
No. 513PA86
Filed 3 September 1987
Criminal Law 26.5 — armed robbery — felonious larceny — sentencing for both not double jeopardy Felonious larceny is not a lesser included offense of armed robbery, and defendant could properly be convicted and sentenced for both armed robbery and felonious larceny of property worth over $400 when both charges were based on the same incident.
ON discretionary review pursuant to N.C.G.S. 7A-31 of a decision of the Court of Appeals, 82 N.C. App. 1, 346 S.E.2d 8 (1986), ordering that a judgment of felonious larceny be arrested, finding no error in defendant's trial and conviction for armed robbery and remanding the case for resentencing. Heard in the Supreme Court 13 May 1987.
Lacy H. Thornburg, Attorney General, by Newton G. Pritchett, Jr., Assistant Attorney General, for the State.
James R. Parish, for defendant-appellee.
Justice WHICHARD did not participate in the consideration or decision of this case.
Justice FRYE dissenting.
Chief Justice EXUM joins in this dissenting opinion.
The defendant was tried for robbery with a dangerous weapon, N.C.G.S. 14-87, and felonious larceny, N.C.G.S. 14-72. The State's evidence showed that on 6 October 1984, in Fayetteville, Ms. Colleen Shield approached her automobile which was parked at a shopping center. She put her pocketbook and two grocery bags containing personal property in the trunk of her automobile. The value of the articles placed in the trunk exceeded $400.00. As she was entering her automobile the defendant appeared by her side and pointed a gun at her. She was able to escape from the defendant but he took her car keys and drove the automobile away.
The defendant was convicted of both charges and was sentenced to twenty years in prison. The Court of Appeals found no error in the conviction of armed robbery but arrested judgment of the conviction of felonious larceny. We allowed the State's petition for discretionary review.
We have allowed discretionary review to determine whether the defendant in this case may be convicted and sentenced for both armed robbery and felonious larceny when both charges are based on the same incident. The Court of Appeals held the defendant could not be so convicted and arrested the judgment of felonious larceny. We believe that State v. Murray, 310 N.C. 541, 313 S.E.2d 523 (1984); State v. Beaty, 306 N.C. 491, 293 S.E.2d 760 (1982); and State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980), require that we reverse the Court of Appeals. Each of these cases holds or says that felonious larceny is not a lesser included offense of armed robbery.
In its opinion the Court of Appeals, relying on State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986), analyzed some of our cases dealing with the question of whether felonious larceny is a lesser included offense of armed robbery. The court did not reach a conclusion as to this question because it did not feel it was necessary to do so. It based its holding on the conclusion that the Legislature did not intend that the defendant be punished for both crimes. In reaching this conclusion, the Court of Appeals relied on some language from State v. McGill, 296 N.C. 564, 568, 251 S.E.2d 616, 619 (1979), which says, "[m]ultiple punishment is one facet of the prohibition against double jeopardy. . . . That rule applies `[w]here two or more offenses of the same nature are by statute carved out of the same transaction and are properly the subject of a single investigation.'" McGill dealt with a question of whether the State should have been required to elect between two separate charges upon which to prosecute the defendant. The quoted language was not necessary to a decision in the case. It does appear that if the language in McGill is the law, a defendant may not be punished for more than one offense if two or more offenses created by statute arise from one transaction and are properly the subject of the investigation. In State v. Pagon, 64 N.C. App. 295, 307 S.E.2d 381 (1983), the Court of Appeals decided a case based on this language. We do not believe this is a correct statement of the law. There are many instances in which a defendant may be punished for more than one crime based on one transaction including Gardner, Murray and Revelle which we have cited above. We shall cite others in this opinion.
Gardner, 315 N.C. 444, 340 S.E.2d 701, deals with the question of whether a defendant, who is convicted of two separate crimes, may be sentenced for both of them if one of the crimes is a lesser included offense of the other. If a defendant is convicted of two crimes based on the same incident and neither crime is a lesser included offense of the other, he may be sentenced for both crimes. Murray, 310 N.C. 541, 313 S.E.2d 523 and State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979). If felonious larceny is not a lesser included offense of armed robbery, it was not error to sentence the defendant in this case for both offenses and Gardner has no application. As the Court of Appeals points out, there appears to be a conflict between two lines of cases in this state as to whether felonious larceny is a lesser included offense of armed robbery. See also Braun, Lesser Included Offenses: A New Piece In The Puzzle, Campbell Law Observer, June 26, 1987, at 1. The following cases hold or say that felonious larceny is a lesser included offense of armed robbery. State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971); State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 29 L.Ed.2d 428 (1971); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); State v. Rogers, 273 N.C. 208, 150 S.E.2d 525 (1968); State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964); State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959); State v. Davis, 242 N.C. 476, 87 S.E. 906 (1955); State v. Bell, 228 N.C. 659, 46 S.E. 834 (1948); State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788 (1982); State v. Reid, 55 N.C. App. 72, 284 S.E.2d 519 (1981); State v. Chapman, 49 N.C. App. 103, 270 S.E.2d 524 (1980); State v. Allen, 47 N.C. App. 482, 267 S.E.2d 514 (1980); State v. Perry, 38 N.C. App. 735, 248 S.E.2d 755 (1978); State v. Fletcher, 27 N.C. App. 672, 220 S.E.2d 101 (1975); State v. Coxe, 16 N.C. App. 301, 191 S.E.2d 923 (1972). On the other hand, Murray, Beaty and Revelle hold or say that felonious larceny is not a lesser included offense of armed robbery.
An offense is a lesser included offense when all its essential elements are included in the greater offense and proof of all elements in the greater offense will prove all elements of the lesser offense. State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982). Armed robbery is defined by N.C.G.S. 14-87 as
(a) Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.
An armed robbery can occur when the defendant attempts to take property from another with the use of a firearm or other dangerous weapon. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971). N.C.G.S. 14-72 deals with larceny. It does not define larceny but makes larceny a felony if the property taken has a value of more than $400.00, or if the larceny is from the person, or committed pursuant to a burglary or breaking or entering, is of an explosive or incendiary device, firearm or of a record in the custody of the North Carolina State Archives. The elements of larceny, as defined by our cases, are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of the property permanently. State v. Bowers, 273 N.C. 652, 161 S.E.2d 11 (1968). To be guilty of larceny, the defendant must have taken and carried away the property of another. An attempt to do so, which would be sufficient proof under N.C.G.S. 14-87 to satisfy the element of a taking, in a trial for armed robbery would not satisfy the taking element in a trial for larceny. This keeps larceny from being a lesser included offense of armed robbery. In this case the felonious larceny was based on the goods having a value of more than $400.00. Proof of the elements of armed robbery need not include proof that the goods taken are worth more than $400.00. This prevents felonious larceny in this case from being a lesser included offense of armed robbery.
We overrule, insofar as they are inconsistent with this opinion, all the above cases which either hold or say that felonious larceny is a lesser included offense of armed robbery.
For the reasons stated in this opinion, we reverse the Court of Appeals and remand for an order affirming the judgment of the superior court.
Reversed and remanded.
Justice WHICHARD did not participate in the consideration or decision of this case.