State v. Dark , 26 N.C. App. 610 ( 1975 )

MARTIN, Judge.

Defendant assigns as error the denial of his motions to dismiss and to set aside the verdict as contrary to the weight of the evidence. He strenuously argues that there was no evidence that the object placed against the night manager's head was a dangerous weapon and that, consequently, it was error to submit the question of armed robbery to the jury. He relies on State v. Keller, 214 N.C. 447, 199 S.E. 620 (1938).

In Keller the victim testified that he did not see a pistol and the evidence only tended to show that defendants sought to make the victim believe they had a pistol by placing a finger to the victim’s head. The Court held that the presence of a firearm was a constituent element of the crime of robbery with a firearm and ordered a new trial for failure of the trial court to so instruct the jury. Furthermore, it was pointed out that the trial court failed to charge on the offense of common law robbery.

Keller is clearly distinguishable. In the present case the night manager testified that he sensed an object against his head which felt like a pistol barrel and that he heard it “click.” The trial judge charged the jury on both armed robbery and common law robbery, and specifically instructed that a “toy pistol would not be a dangerous weapon as a matter of law.” Also, the jury was instructed that in order to find defendant guilty of robbery with a firearm or other dangerous weapon, the State must prove that defendant had in his possession a dangerous weapon and that defendant obtained the property by endangering or threatening the life of the night manager with a dangerous weapon.

It is true, as defendant points out with emphasis, that the State’s witness never testified that he saw the object used in the alleged robbery. Nevertheless, eyesight is not the only sensory mechanism by which one can experience an object. Viewing the evidence in the light most favorable to the State, the question as to whether there was an armed robbery was one for the jury to answer. State v. Smith, 26 N.C. App. 511, 216 S.E. 2d 403 (1975) ; State v. Evans, 25 N.C. App. 459, 213 S.E. 2d 389 (1975).

Defendant’s remaining assignment of error is overruled.

No error.

Judges Britt and Hedrick concur.