State v. Witherspoon, 271 N.C. 714 (1967)

Nov. 1, 1967 · Supreme Court of North Carolina

271 N.C. 714

STATE v. WILLIAM D. WITHERSPOON.

(Filed 1 November, 1967.)

Appeal by defendant from McLaughlin, J., 27 February 1967 Session of Foesyth.

Defendant, represented by court-appointed counsel, was tried upon a bill of indictment which charged that, on 20 January 1967, he endangered and threatened the lives of Florence B. Bates and Mrs. Raymond B. Martin with the use of a pistol and did unlawfully and feloniously take, steal, and carry away from the place of business known as Hunter’s Moon $10.00, the property of Florence B. Bates, the owner of Hunter’s Moon.

Evidence for the State tended to show: Mrs. Florence B. Bates operates Hunter’s Moon, a used clothing store at 216 North Trade Street in Winston-Salem. About 4:00 p.m. on 20 January 1967, defendant, who had been in the store three or four times prior to that day, came in and shook hands with Mrs. Bates. He then took a pair of pants from the rack, went into the dressing room to try them on, and emerged a few minutes later to report that they did not fit. At that time, Mrs. Bates was standing behind the counter and when she turned toward defendant, she saw that he had a pistol in his hand. He told her to give him “the money,” or he would blow her head off. She handed him between ten and twenty one-dollar bills, and he began calling her vile names. He then shot her in the forehead, and she fell behind the counter. Mrs. Raymond Martin, the assistant manager, ran out of the store and called the police. Three days later, at the hospital, Mrs. Bates picked defendant from a group of photographs submitted to her by the police.

At the trial, both Mrs. Bates and Mrs. Martin positively identified defendant as the man who shot Mrs. Bates and took the money from the store. Defendant did not testify but offered evidence which tended to show that at the time of the alleged robbery he was asleep in his home. The jury returned a verdict of guilty as charged. Judge McLaughlin imposed a sentence of not less than 28 nor more than 30 years, and defendant appealed.

Attorney General Bruton and Deputy• Attorney General McGal-liard for the State.

Richard C. Erwin, Sr., for defendant appellant.

Per Curiam.

The State’s evidence was more than sufficient to establish defendant’s guilt of the crime specified in the bill of indictment. The judge, in his charge to the jury, correctly applied the law to the evidence and fairly presented the contentions of both the State and defendant. The jury resolved the only contested issue of fact, the identity of the person who robbed and shot Mrs. Bates, against defendant. The judge imposed a sentence, which was within the statutory maximum. G.S. 14-87. It therefore does not constitute the cruel and unusual punishment forbidden by Article I, § 14 of the Constitution of North Carolina. State v. LePard, 270 N.C. 157, 153 S.E. 2d 875.

No error.