State v. Perry , 38 N.C. App. 735 ( 1978 )

248 S.E.2d 755 (1978) 38 N.C. App. 735

STATE of North Carolina
v.
Ulysses PERRY.

No. 788SC560.

Court of Appeals of North Carolina.

November 21, 1978.

Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Rebecca R. Bevacqua, Raleigh, for the State.

Kornegay & Rice, P. A., by Robert T. Rice, Mount Olive, for defendant-appellant.

ARNOLD, Judge.

The sole question on this appeal is whether the court erred in failing to charge the jury, as requested, on misdemeanor larceny as a lesser included offense, and to submit it as a possible verdict.

The defendant was found guilty of common law robbery, which is defined as "the felonious taking of goods or money from the person or presence of another by means of force or intimidation." 77 C.J.S. Robbery § 1, p. 446. He requested an instruction on misdemeanor larceny, apparently on the basis that the property involved was worth less than $200, pursuant to G.S. 14-72(a). "[A] defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts." State v. Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977).

According to the State's evidence, the defendant took the money from the person of Jerry Crawford, which would bring G.S. 14-72(b)(1) into play and make an instruction on misdemeanor larceny unnecessary. G.S. 14-72(b)(1) provides that "[t]he crime of larceny is a felony, without regard to the value of the property in question, if the larceny is . . . from the person . ." However, defendant testified that on previous occasions he and Jerry Crawford had discussions about stealing the money that Crawford collected at the service station. According to defendant, about three weeks before the robbery, Crawford had said, "Well, you come by one night and I'll let you have the money and I'll tell the people, the company, that I was robbed." Defendant's testimony presents evidence from which the jury might infer that he and Crawford acted in collusion in taking the money from the Kayo station, in which case the larceny would not be "from the person." Thus, there was evidence of misdemeanor larceny, a lesser offense, and the failure to submit this issue for the jury's consideration entitles defendant to a

New trial.

CLARK and ERWIN, JJ., concur.