STATE of North Carolina
v.
Reuben Isaac COATS.
No. 32.
Supreme Court of North Carolina.
October 7, 1980.*423 Rufus L. Edmisten, Atty. Gen., Dennis P. Myers, Asst. Atty. Gen., Raleigh, for the State.
Daniel T. Perry, III, Fayetteville, for defendant-appellant.
HUSKINS, Justice:
The trial judge submitted two, and only two, permissible verdicts, viz: guilty of armed robbery as charged or not guilty. Defendant's first assignment of error is based on the contention that the court erred in failing to submit common law robbery as a permissible verdict. The Court of Appeals found no merit in this assignment and neither do we.
"The essential difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. In a prosecution for armed robbery, the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant's guilt of that crime. If the State's evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on common law robbery is not required." State v. Lee, 282 N.C. 566, 569-70, 193 S.E.2d 705, 707 (1973) (citations omitted); accord, State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971).
In the instant case, Smith testified that he saw the barrel, handles and cylinder of a silver-colored heavy gun. The gun was pointed at Smith by Hoot when the robbery commenced, and its persuasive influence was still present when defendant removed Smith's watch and wallet. Thus, *424 the State's evidence shows an armed robbery as charged in the bill of indictment. The mere fact that defendant swore he did not see a weapon is of insufficient probative value to warrant or require the submission to the jury of the lesser included offense of common law robbery. Compare State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979). His statement to that effect is not in conflict with the State's evidence. He explained why he could not see the gun, saying, "It was dark in the car and it was dark and it was dark in the area. I was in the back seat and I never saw no gun." Obviously, an instruction on common law robbery was not required. Defendant's testimony that he did not participate in the robbery and did not see a gun constitutes no evidence of his guilt of common law robbery. Defendant's first assignment of error is overruled.
Defendant contends the verdict of the jury was not unanimous and the court erred in accepting it. This constitutes his second assignment of error.
When the verdict was returned in open court, defendant requested that the jurors be polled and this was done. During that inquiry, the following colloquy occurred:
"COURT: Mrs. Bailey, your foreman has returned a verdict of guilty as charged, was this your verdict?
MRS. BAILEY: We understood it acting in concert.
COURT: Was this your verdict?
MRS. BAILEY: Yes.
COURT: And do you still agree and assent thereto?
MRS. BAILEY: Yes."
Defendant argues that the quoted colloquy does not establish affirmatively that each juror assented to the verdict announced earlier by the foreman. Defendant therefore contends the verdict was not unanimous as required by Article I, section 24 of the Constitution of North Carolina.
We find no merit in this contention. The record reveals that the trial judge had charged the jury, in pertinent part, as follows:
"Now, for a person to be guilty of a crime it is not necessary that he himself do all the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit robbery with a firearm each of them is held responsible for the acts of the others done in the commission of robbery with a firearm.
So, I charge that if you find from the evidence and beyond a reasonable doubt that on or about December 20, 1978 Reuben Isaac Coats acting either by himself or acting together with others had in his possession a firearm and took and carried away money and watch and wallet and shoes from the person or presence of James Smith without his voluntary consent by endangering or threatening his life with the use or threatened use of a pistol, the defendant, Reuben Isaac Coats, knowing that he was not entitled to take the money, watch, wallet and shoes and intending at that time to deprive James Smith of its use permanently it would be your duty to return a verdict of guilty of robbery with a firearm. However, if you do not so find or have a reasonable doubt as to one or more of these things it would be your duty to return a verdict of not guilty."
It is quite obvious that the comment of the juror refers to the quoted instruction that it was not necessary for defendant himself to do all the acts necessary to constitute the crime and that if several persons acted together with a common purpose to commit robbery with a firearm, then each of them was in law responsible for the acts of the others. That is what Mrs. Bailey was talking about when she said, "We understood it acting in concert." It is therefore equally obvious that the verdict of the jury was unanimous and the court properly accepted it. Defendant's second and final assignment of error is overruled.
Defendant has shown no prejudicial error in his trial and conviction. The verdict and judgment must therefore be upheld.
NO ERROR.
BROCK, J., took no part in the consideration or decision of this case.