State v. Coats , 46 N.C. App. 615 ( 1980 )

MARTIN (Robert M.), Judge.

In his first assignment of error defendant offers two arguments to support his contention that the trial court erred in refusing to submit the issue of common law robbery to the jury. Defendant first points to his own testimony when he was asked on direct examination, “Did you ever see any gun — did you see Hoot with any gun?” Defendant answered, “No, sir.” Counsel asked, “You didn’t see the gun?” Defendant answered, “It was dark in the car anyway.” On cross-examination defendant was asked, “You say you never saw a gun?” He answered, “I didn’t.” The prosecutor then asked, “Were you seated in a position where you could see a gun?” The defendant explained, “It was dark in the car and it was dark in the area. I was in the back seat and I never saw no gun.” Defendant contends that this evidence, if believed by the jury, tends to establish the commission of the lesser included crime of common law robbery. We do not agree.

The essential difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. (Citations omitted.) In a prosecution for armed robbery the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant’s guilt of that crime. If the State’s evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on common law robbery is not required. (Citations omitted.)

State v. Lee, 282 N.C. 566, 569-70, 193 S.E. 2d 705, 707 (1973). See State v. Wilson, 31 N.C. App. 323, 229 S.E. 2d 314 (1976).

We have examined the record and we hold that the testimony of the defendant is not inconsistent with the evidence offered by the State tending to show that the robbery was completed with a firearm. Defendant’s denial of his participation in the robbery of Smith and his denial that he saw a gun during the robbery of Smith does not constitute evidence that defendant is guilty of common law robbery.

Defendant also argues that the evidence for the State would support an instruction on common law robbery on the theory that Smith’s testimony is suspect due to evidence of his drinking, the poor lighting conditions and an allegedly incomplete description of the weapon.

In the absence of a conflict in the evidence, the contention that the jury might accept the evidence in part and reject it in part is not sufficient to require an instruction on a lesser included offense. State v. Gurkin, 8 N.C. App. 304, 174 S.E. 2d 20 (1970). “It is the task of the jury alone to determine the weight and credibility of the evidence, and to determine the facts.” 4 Strong’s N.C. Index 3d, Criminal Law, § 103 (1976).

In summary, Smith’s testimony indicates that he saw a barrel, handles, and cylinder of a silver-colored, heavy gun. This gun was pointed at Smith by one of the men in the front seat when Smith was told that he was being robbed and it was still present and visible when the defendant removed Smith’s watch and wallet. The credibility of this evidence was properly a question for the jury. This assignment of error is overruled.

Defendant next asserts that the record does not affirmatively establish that each juror assented to the verdict announced by the foreman.

When the verdict was returned, defendant requested that the jurors be polled. During that inquiry the following took place:

COURT: Mrs. Bailey, your foreman has returned a verdict of guilty as charged, was this your verdict?

MRS. BAILEY: We understood it acting in concert.

Exception. This constitutes

DEFENDANT’S EXCEPTION NO. 3

COURT: Was this your verdict?

MRS. BAILEY: Yes.

COURT: And do you still agree and assent thereto?

Mrs. Bailey: Yes.

Exception. This constitutes

DEFENDANT’S EXCEPTION NO. 4

Article I, Sec. 24 of the Constitution of North Carolina requires a unanimous verdict for a valid conviction for any crime. The trial court, upon receiving an unresponsive answer to the question concerning the verdict, repeated the question and received a responsive and affirmative answer. See State v. Blackmon, 28 N.C. App. 255, 220 S.E. 2d 850 (1976). We find no ambiguity in the announcement of the verdict and we hold that the defendant was convicted in the fashion provided for by the Constitution.

In defendant’s trial we find

No error.

Judge HILL concurs. Judge Webb dissents.