State v. Sipes, 233 N.C. 633 (1951)

May 23, 1951 · Supreme Court of North Carolina

233 N.C. 633

STATE v. HERMAN SIPES.

(Filed 23 May, 1951.)

1. Robbery § la—

Robbery is tbe felonious taking of personal property from tbe person of another, or in bis presence, without bis consent, or against bis will, by violence, intimidation or putting in fear, tbe degree of force being immaterial so long as it compels tbe victim to permit tbe taking.

3. Same—

Force as an element of robbery may be actual or constructive; constructive force being all means, including demonstrations of force or menaces, by wbicb tbe victim is put in fear sufficient to suspend tbe free exercise of bis will or prevent bim from resisting tbe taking.

3. Robbery § 3—

Evidence tending to show that defendant and two other men unknown to tbe prosecuting witness directed tbe witness to get into defendant’s car, that be was driven to a secluded spot where bis knife was taken away from him and thrown away, and that defendant then took tbe witness’ pocketbook containing fifteen dollars, tbe three being together with one of them having bis band in bis pocket in such a manner as to lead tbe witness to believe be had some weapon, and that the witness surrendered bis money from fear, is held, sufficient to overrule defendant’s motions to nonsuit in a prosecution for robbery.

Appeal by defendant from Clement, J., December Term, 1950, Gtjil-eobod (High Point Division).

Criminal prosecution on bill of indictment charging tbe defendant with the commission of the crime of robbery with the use or threatened use of firearms.

Oh the night of 11 August 1950, Luther Coble went to the West Green Tavern in High Point for a bottle of beer. He was approached by defendant who suggested they match for a drink. Coble won. Sipes then suggested they match for 50 cents. Defendant won and then suggested they match for $1. Coble won. The defendant refused to pay, and they started arguing. The man behind the counter ordered them to leave. They went out, and two other men came up and said, “All right, Coble, come and let’s get in Sipes’ car.” One of them had his hand in his pocket. Not knowing what the man had in his pocket, but thinking he might have a weapon, Coble got in the car. The three other men also got in and Sipes drove down behind the railroad cafe into an old cement mixing plant, turned around, and told Coble to get out. He asked Coble if he had a knife. Coble replied in the affirmative and gave his knife to Sipes who threw it away. He then took Coble’s pocketbook, took out $15, and hit Coble in the face. Coble ran away and called the police. Later, Sipes was arrested in the tavern where he and Coble first met. Sipes denied he had ever seen Coble. Coble testified that he went with the three men because he was scared and gave up his pocketbook because he did not know whether they had a gun. After Sipes was arrested he told Coble “he would pay me my money back if he could and told me at first, I will give you your money back if you don’t appear in court against me and it will be easier on each of us.”

There being no sufficient evidence of tbe use of firearms, tbe court submitted tbe cause to tbe jury on tbe count of robbery. There was a verdict of guilty. Tbe court pronounced judgment on tbe verdict and defendant appealed.

Attorney-General McMullan, Assistant Attorney-General Bruton, and Charles G. Powell, Jr., Member of Staff, for the State.

York, Morgan <& York for defendant appellant.

BabNhill, J.

Only one question is presented for decision. Is tbe evidence, considered in tbe light most favorable to tbe State, sufficient to repel defendant’s motion to dismiss as in case of nonsuit ?

Robbery is tbe felonious taking of personal property from tbe person of another, or in bis presence, without bis consent, or against bis will, by violence, intimidation or putting in fear. S. v. Bell, 228 N.C. 659, 46 S.E. 2d 834; S. v. Lunsford, 229 N.C. 229, 49 S.E. 2d 410.

Tbe degree of force is immaterial so long as it is sufficient to compel tbe.victim to part with bis property or property in bis presence, and tbe element of force may be actual or constructive. S. v. Sawyer, 224 N.C. 61, 29 S.E. 2d 34.

“Constructive force” includes all demonstrations of force, menaces, and other means by which tbe person robbed is put in fear sufficient to suspend tbe free exercise of bis will or prevent him from resisting the taking. S. v. Sawyer, supra.

Tbe evidence tested by these controlling principles leads to tbe conclusion that it is sufficient to support tbe verdict.

Defendant and two other men unknown by Coble directed him to get into defendant’s automobile. He was driven to a secluded spot. His knife was taken and thrown away. Defendant then took bis pocketbook containing $15. There were three to one, and one of tbe three bad bis band in bis pocket in such manner as to lead Coble to believe be bad some weapon. Coble was put in fear and bis money was taken from bis person by defendant and bis companions. Whether in so doing they committed tbe crime of robbery was for tbe jury to decide.

In tbe trial below we find

No error.