Opinion
No. 8110SC196
Filed 3 November 1981
1. Larceny 4 — indictment for common law robbery — conviction of larceny from the person Larceny from the person is a lesser included offense of common law robbery, and an indictment for common law robbery will support a conviction for larceny from the person.
2. Indictment and Warrant 10.1 — use of alias in warrant — idem sonans Where defendant's real name was unknown at the time of his arrest and a witness mistakenly believed the defendant's nickname to be "Shank" when it was "Chink," an arrest warrant issued for "Shank" sufficiently identified defendant since the names "Chink" and "Shank" sound sufficiently similar to invoke the doctrine of idem sonans. Furthermore, defendant waived any objection to the misnomer appearing in the warrant by pleading not guilty and going to trial on the merits of the case.
3. Criminal Law 75.7 — asking of defendant's name — no custodial interrogation An officer's asking of the defendant's name did not constitute custodial interrogation, and testimony that defendant falsely identified himself to police officers following his arrest was admissible even though defendant had not been given the Miranda warnings.
4. Criminal Law 33; Robbery 3 — street price of marijuana — relevancy in robbery case In a common law robbery prosecution in which the State's evidence tended to show that defendant unlawfully took $50 from the person of the prosecuting witness, and defendant contended that the prosecuting witness had arranged to buy a half-pound of marijuana from defendant for the price of $60 and instituted a false robbery claim against defendant when defendant failed to deliver the drugs, the State's rebuttal of the street price of a half-pound of marijuana was relevant to aid the jury in deciding which party's version of the facts was true.
5. Larceny 4 — larceny from the person — sufficiency of indictment An indictment for common law robbery was sufficient to support defendant's conviction of larceny from the person even though it did not contain express allegations that the property was taken with intent to steal and against the victim's will or without his consent.
APPEAL by defendant from Clark, Judge. Judgment entered 26 November 1980 in Superior Court, WAKE County. Heard in the Court of Appeals 2 September 1981.
Attorney General Edmisten, by Associate Attorney Michael Rivers Morgan, for the State.
Assistant Appellate Defender Marc D. Towler, for the defendant-appellant Robert Edward Young.
Judge BECTON dissenting.
Defendant was indicted for common law robbery. At trial after the presentation of the evidence, the court allowed the defendant's motion to dismiss the charge of common law robbery based on the insufficiency of the evidence. The jury found the defendant guilty of larceny from the person and sentenced him to seven to ten years imprisonment.
The State's evidence tended to show that a man snatched fifty dollars from James Blue's hand as he walked down a Raleigh street. Blue was unable to apprehend the thief. Danny Sanders witnessed the incident and recognized the defendant as a man who lived on his block, whom he knew only by the nickname "Shank". Pursuant to the statements of Danny Sanders and James Blue, a warrant was issued for the arrest of "Shank" and the defendant was arrested. The defendant's nickname was not "Shank" but was "Chink." Other evidence necessary for the resolution of the appeal is contained in the opinion of the court.
The defendant first argues that his conviction for larceny from the person is invalid because that offense is not a lesser included offense of common law robbery governed by N.C. Gen. Stat. 15-170. We disagree.
While larceny from the person does carry the same penalty as common law robbery, the North Carolina courts have treated larceny from the person as a lesser included offense. See State v. McLawhorn, 43 N.C. App. 695, 260 S.E.2d 138 (1979), disc. rev. denied 299 N.C. 123, 261 S.E.2d 925 (1980). In State v. Kirk, 17 N.C. App. 68, 193 S.E.2d 377 (1972), the prosecuting witness was working as a gas station attendant one night, and while pumping gas for a customer, the customer exited his car, went behind the prosecuting witness, removed a billfold containing money from the prosecuting witness' hip pocket, and ran down the street. The victim called for the wrongdoer to stop, but to no avail. The Court expressly stated that larceny from the person is a lesser included offense of common law robbery. Id. at 70, 193 S.E.2d 379. Thus defendant's assignment of error is without merit and is overruled.
The defendant next contends that the trial judge erroneously admitted into evidence testimony that defendant identified himself to police by giving two false names following his arrest. The defendant argues that (1) his utterance was the product of an unlawful arrest made pursuant to an arrest warrant which did not adequately identify the defendant and (2) testimony concerning this utterance was erroneously admitted because of the absence of a showing that defendant had been informed of his Miranda rights prior to making the statement.
Considering the first contention, it is true that a warrant must clearly and positively identify the person charged with the commission of an offense. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). Nonetheless a description of an accused in a warrant by whatever alias names he may have been known to use, if done in good faith, is proper. State v. Culp, 5 N.C. App. 625, 169 S.E.2d 10 (1969). In this case none of the State's witnesses knew the defendant's real name at the time of arrest. Danny Sanders, however, did identify the defendant as the thief but mistakenly believed the defendant's nickname to be "Shank." Accordingly the arrest warrant was issued for "Shank" while the defendant's nickname was "Chink."
The names "Chink" and "Shank" sound sufficiently similar to invoke the doctrine of idem sonans. The doctrine of idem sonans has been applied in the North Carolina cases of State v. Sawyer, 233 N.C. 76, 62 S.E.2d 515 (1950), where there was a variance between the defendant's name "Sawyer" and the name of "Swayer" which appeared in the warrant, and State v. Vincent, 222 N.C. 543, 23 S.E.2d 832 (1943), where the defendant's actual name was "Vincent," yet the name "Vinson" appeared in the indictment. In both of these cases, the Supreme Court noted that the respective defendants could not be heard to claim that they were not adequately identified in the arrest warrants at issue. Furthermore, the defendant waived any objection to the misnomer appearing in the warrant by pleading not guilty and going to trial on the merits of the case. State v. Sawyer, supra; State v. Ellis, 200 N.C. 77, 156 S.E. 157 (1930).
In addition the defendant argues that his statement was improperly admitted in light of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). Miranda warnings are only required when a defendant is being subjected to custodial interrogation. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). The mere asking of the defendant's name did not constitute interrogation. Thus no Miranda warnings were required.
In State v. Phillips, 37 N.C. App. 202, 245 S.E.2d 587 (1978), a police officer's inquiry as to whether an arrested defendant knew "what was going on" did not constitute custodial interrogation. Similarly, other jurisdictions have ruled that the preliminary questions asked during the booking procedure such as name, address, place of employment, age and other routine background inquiries did not constitute custodial interrogation. People v. Hernandez, 263 Cal.App.2d 242, 69 Cal.Rptr. 448 (1968), People v. McIntosh, 53 Ill. App.3d 958, 369 N.E.2d 217 (1977), Clarke v. State, 3 Md. App. 447, 240 A.2d 291 (1968).
We do not think that testimony concerning defendant's false identification was improperly admitted. Even if there had been error in the admission of the statement, it would not have been prejudicial since there is no reasonable possibility that it would have contributed to Young's conviction. We believe that the admission of the statement if erroneous would have been harmless beyond a reasonable doubt. State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). Defendant's assignments of error are without merit and are overruled.
The defendant also alleges that the admission of evidence relating to the street price of marijuana was error in that the evidence was irrelevant and prejudicial. This contention is totally without merit.
The State's evidence tended to show that the defendant unlawfully took fifty dollars from the person of James Blue. The defense, on the other hand, tried to prove that Blue had arranged to buy a half-pound of marijuana from the defendant for the price of sixty dollars and that when the defendant failed to deliver the drugs, Blue instituted a false robbery claim. Thus the defendant placed the drug issue before the jury and the State's rebuttal evidence concerning the price of a half-pound of marijuana was appropriate. That evidence served to aid the jury in deciding the ultimate question in this case — which party's version of the facts was true. Consequently, this assignment of error is without merit and is overruled.
The defendant-appellant's final contention is that the indictment which charged him with the offense of common law robbery was insufficient to support his conviction of the offense of larceny from the person because the indictment did not contain the express allegations that the property was taken with intent to steal, and was taken against the victim's will or without his consent. The indictment read as follows:
"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 22nd day of September, 1980, in Wake County Robert Edward Young did unlawfully, wilfully, and feloniously make an assault on James Blue and did put him in bodily fear and danger of his life, and then and there did unlawfully, wilfully, feloniously, forcibly, and violently take, steal, and carry away $50 in United States currency of the value of $50 dollars, from the person and possession of the said James Blue."
It is not required that an indictment charging the felonious taking of goods from the person of another by the use of force aver that the taking was with the intent to convert the personal property to the defendant's own use, for the question of specific intent would properly be submitted to the jury under the charge. State v. Williams, 265 N.C. 446, 144 S.E.2d 267 (1965); State v. Frietch, 8 N.C. App. 331, 174 S.E.2d 149 (1970). Furthermore, the judge expressly charged the jury that the taking must be without the victim's consent. Consequently, this assignment of error is overruled.
For the foregoing reasons, we find in defendant's trial
No error.
Judge MARTIN (Harry C.) concurs.
Judge BECTON dissents.