State v. Irwin , 55 N.C. App. 305 ( 1982 )

HEDRICK, Judge.

Defendant first assigns as error the court’s failure to grant defendant’s motion to dismiss the charge of armed robbery for insufficiency of the evidence. Since defendant was acquitted of that offense, this assignment of error is groundless.

Defendant’s next assignment of error is the court’s instruction to the jury on the offense of common law robbery. Defendant argues there was insufficient evidence to permit instruction on that offense in that the State presented no evidence of an essential element of common law robbery, to wit, that the life of the victim of the wrongful taking of property, here Dewey Brogden, was endangered or threatened. Defendant contends that the State’s evidence tended to show that only Ellen Sampson’s, not Brogden’s, life was threatened by defendant.

Common law robbery is the taking of money or goods with felonious intent from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Moore, 279 N.C. 455, 183 S.E. 2d 546 (1971). Without commenting on whether the endangerment or threat must be posed to the victim of the robbery as opposed to some third person, suffice it to say that evidence in the present case tended to show that defendant accomplished the robbery of personal property from Brogden by endangering or threatening the life of Brogden himself. Defendant was wielding a knife and could at any moment have turned its use towards Brogden if Brogden balked at defendant’s demands. Brogden testified that he was scared that defendant might hurt him (Brogden) if given the chance. When there is evidence that the robber is wielding a dangerous weapon, testimony by the victim that he was scared is sufficient to meet any requirement that the victim be endangered or threatened. See State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 91 S.Ct. 2199, 29 L.Ed. 2d 428 (1971). Furthermore, the mere fact that the victim complied with the assailant’s demands is itself indicative of fear. State v. Hammonds, 28 N.C. App. 583, 222 S.E. 2d 4 (1976). The State, therefore, put on evidence of all essential elements of common law robbery, including the “violence or fear” requirement, and this assignment of error is without merit.

Defendant also assigns as error the court’s instructions to the jury on the offense of false imprisonment. Defendant argues that false imprisonment is not a lesser included offense of the offense charged in the indictment, ie., kidnapping, and therefore should not have been submitted for the jury’s consideration. This argument is without merit. “[W]hen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense which is charged in the bill of indictment contains all the essential elements of the lesser.” State v. Hunter, 299 N.C. 29, 38, 261 S.E. 2d 189, 195 (1980). False imprisonment is a lesser included offense of kidnapping, State v. Fulcher, 34 N.C. App., 233, 237 S.E. 2d 909 (1977), aff'd, 294 N.C. 503, 243 S.E. 2d 338 (1978), and therefore the court’s instruction thereon was not improper. This assignment of error has no merit.

Defendant’s next assignment of error is the court’s use of a hypothetical illustration in instructions it gave to the jury after a juror requested further elaboration on the “permanent taking” element of common law robbery.

In explaining legal principles to a lay jury, the trial judge’s use of illustrations should be carefully guarded to avoid suggestions susceptible of inferences as to facts beyond intended, but the mere use of hypothetical illustrations will not result in vacating the verdict on appeal unless’ the appellant can show that he was materially prejudiced by their use. Rea v. Simowitz, 226 N.C. 379, 38 S.E. 2d 194 (1946). A judge’s charge to the jury is to be construed as a whole, and if, when so construed, it is sufficiently clear that no reasonable cause exists to believe that the jury was misled or misinformed, any exception to it will not be sustained even though the instruction could have been more aptly worded. State v. Williams, 299 N.C. 652, 263 S.E. 2d 774 (1980).

In the present case, the court gave a hypothetical example contrasting a temporary and a permanent taking. Defendant has in no way shown how the instruction prejudiced him, and in fact, the instruction fairly and correctly presented the law in response to a question of a juror. This assignment of error is therefore overruled.

Finally, defendant assigns as error the court’s failure to grant his motion to dismiss, for insufficiency of the evidence, the charge of assault with a deadly weapon with intent to kill. Defendant argues that the State presented no evidence that defendant had the requisite intent to kill.

“[T]here must be substantial evidence of all material elements of the crime • charged to withstand the motion to dismiss.” State v. Murphy, 49 N.C. App. 443, 444, 271 S.E. 2d 573, 574 (1980). A specific intent to kill is an essential element of the offense of assault with intent to kill. State v. Cooper, 8 N.C. App. 79, 173 S.E. 2d 604 (1970); see also State v. Parks, 290 N.C. 748, 228 S.E. 2d 248 (1976) and State v. Christy, 26 N.C. App. 57, 215 S.E. 2d 154 (1975). Hence an intent to kill the victim by means of the assault, as opposed to an intent merely to intimidate, must accompany the assault. To sustain a conviction of assault with intent to kill, there must be an assault the intent of which is to kill. The requisite intent to kill must be proven by the State, and may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances. State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972). Furthermore, evidence that a defendant would have had an intent to kill only if a particular event occurred is not sufficient to meet the requirement that there be evidence of an actual, existing, and present intent to kill, since such a conditional intent to kill will never be actualized if the condition precedent upon which it is based never occurs. Stroud v. State, 131 Miss. 875, 95 So. 738 (1923); see also Craddock v. State, 204 Miss. 606, 37 So. 2d 778 (1948) and Lindley v. State, 234 Miss. 423, 106 So. 2d 684 (1958).

In the present case, the State presented evidence that defendant grabbed the matron and held a knife to her throat and inadvertently caused the knife to make a small abrasion on her left cheek and that defendant said that he would kill Ms. Sampson if he had to, and that he said “[D]on’t any of [you] be no damn hero, I will kill this woman” and “I don’t want to hurt this woman but I don’t have any choice.” Even if this evidence tended to show that defendant had an intent to kill Ms. Sampson eventually, it is not evidence of the requisite intent to kill her by means of the assault, ie., it is not evidence that defendant committed an assault the intent of which was to kill.

The State’s evidence really tended to show that defendant threatened to kill Ms. Sampson only if she and other persons present at the jail failed to comply with his orders. This evidence is evidence of only a conditional intent to kill, the converse of which is a specific intent not to kill anyone if Brogden and the others complied with defendant’s demands. The State presented evidence of an intent to kill which would be activated only upon the captives’ noncompliance; the State presented no evidence that the intent was ever activated; rather, the fact that the captives did comply and that Ellen Sampson was not killed or exposed to an attempt by defendant to kill her negates the possibility that defendant ever intended to kill her. The State’s evidence shows only that defendant committed an assault with the intent to intimidate. The trial judge, therefore, improperly submitted to the jury the charge of assault with a deadly weapon with intent to kill, and defendant’s conviction of that offense must be reversed.

There was ample evidence that defendant, using an instrument capable of producing great bodily harm, committed a show of violence causing Ms. Sampson to have a reasonable apprehension of immediate bodily harm. Hence, the State presented sufficient evidence to allow the judge to submit to the jury the offense of assault with a deadly weapon. The jury, in finding beyond a reasonable doubt that defendant committed assault with a deadly weapon with intent to kill, necessarily found beyond a reasonable doubt that defendant had committed the elements of the lesser included offense of assault with a deadly weapon. Hence, this case will be remanded solely for entry of a verdict of guilty of assault with a deadly weapon, and for a proper judgment on that verdict. See State v. Goss, 293 N.C. 147, 235 S.E. 2d 844 (1977); State v. Keeter, 35 N.C. App. 574, 241 S.E. 2d 708 (1978); State v. Cornell, 51 N.C. App. 108, 275 S.E. 2d 857 (1981). There has been no showing that a new trial would produce a different result as to the jury’s findings on defendant’s guilt of assault with a deadly weapon, and therefore a new trial is not warranted. State v. Mathis, 293 N.C. 660, 239 S.E. 2d 245 (1977).

The result is: for the trial on common law robbery and false imprisonment, no error; for the judgment on assault with a deadly weapon with intent to kill, vacated and remanded.

No error in part; vacated and remanded in part.

Judge Clark concurs. Judge MARTIN (Harry C.) concurs in part and dissents in part.