State v. McLean, 14 N.C. App. 664 (1972)

May 24, 1972 · North Carolina Court of Appeals · No. 7212SC255

14 N.C. App. 664

STATE OF NORTH CAROLINA v. ROBERT LEE McLEAN

No. 7212SC255

(Filed 24 May 1972)

Appeal by defendant from Hall, Judge, 13 September 1971 Session of Superior Court held in Cumberland County.

Defendant was charged in a bill of indictment, proper in form, with the felony of armed robbery. He was charged in a second bill of indictment, proper in form, with a felonious assault. The two charges were consolidated for trial.

The State’s evidence tended to show the following: At about one o’clock a.m. on 23 June 1971 the victim, David McCoy, was returning home after a visit with his cousin. As he walked along Mann Street in the City of Fayetteville, he was approached by defendant and one Joseph Simmons. McCoy had known defendant for more than two years. While holding a pistol in his hand, defendant told McCoy to empty his pockets and take off his shoes. McCoy complied. He put a ten dollar bill and a pack of cigarettes on the ground and then took off his shoes. Defendant then started shooting at McCoy; he was hit twice in the leg and once in the chest. After being shot, McCoy ran a short distance to a Rest Home from which the police were called. McCoy then collapsed and was carried to the hospital.

Defendant’s evidence tended to show the following: At the time in question defendant and Joseph Simmons saw McCoy walking along the street. Simmons handed the pistol to defendant who put it in his hip pocket. Simmons asked McCoy if he had any money and McCoy handed defendant forty-three cents. McCoy then drew a knife and defendant pulled out the pistol and started shooting. Defendant did not plan to rób McCoy.

The jury found defendant guilty as charged in each bill of indictment. Judge Hall consolidated the two cases for purpose of judgment and sentenced defendant to one term of not less than fifteen nor more than thirty years. Defendant appealed.

Attorney General Morgan, by Assistant Attorney General Magner, for the State.

James Godwin Taylor, Ttoelftk District Assistant Public Defender, for defendant.

BROCK, Judge.

The Assistant Public Defender, with appropriate candor, states that he is unable to find prejudicial error and asks this court to review the record for possible error. We have carefully reviewed the record proper and find that the indictments were proper in form and sufficient to charge the offenses for which defendant was placed on trial. The trial court was duly organized and had jurisdiction of defendant and the offenses charged. The evidence against defendant was overwhelming and unequivocal. The judgment pronounced was within the statutory limits (G.S. 14-87).

No error.

Chief Judge Mallard and Judge Campbell concur.