State v. Cherry

MARTIN, Judge.

Defendant contends the court erred in refusing to grant his motion to dismiss at the end of all the evidence.

The indictment charged that defendant, with the unlawful use of a handgun whereby the life of Cathy Benfield was endangered, did take, steal and carry away $455.14. However, the evidence presented tended to show, and the court in fact charged on attempted robbery with a firearm. Defendant contends there is a fatal variance between the indictment and proof in that a taking was charged and an attempt to take was the subject of the evidence.

*601“By the terms of G.S. 14-87 an attempt to rob another of personal property, made with the use of a dangerous weapon, whereby the life of a person is endangered or threatened, is, itself, a completed crime and is punishable to the same extent as if the property had been taken as intended. (Citation omitted.) Such attempt occurs when the defendant, with the requisite intent to rob, does some overt act calculated and designed to bring about the robbery, thereby endangering or threatening the life of a person. (Citation omitted.)” State v. Price, 280 N.C. 154, 184 S.E. 2d 866 (1971).

G.S. 14-87 was enacted to cover situations where there was an attempt to take as well as those where there was an actual taking. The attempt now is on equal level with the taking: each offense is of equal gravity. State v. Sanders, 280 N.C. 81, 185 S.E. 2d 158 (1971).

Admittedly, there is variance between the allegations and the proof offered, but the variance is not material. The indictment charged all the essential elements of the crime of armed robbery. The offense was complete when the defendant attempted to take the money from the presence of Cathy Griffith Benfield by the means condemned in G.S. 14-87. Proof was offered to support the material allegations. The trial court correctly denied motion for dismissal.

Next, defendant assigns as error that portion of the charge which reads as follows:

“Now, as I have said, the defendant has been accused of attempted robbery with a firearm which is attempting to rob or endangering or threatening that other person with a firearm.”

Defendant argues that this is a prejudicial instruction for it would allow the jury to convict him if it found only that he had endangered Cathy Benfield with a firearm.

Immediately following the portion in question, the court gave a complete instruction on the elements of attempted armed robbery. The jury was fully apprised of its duty and that body was not confused. The mistake was merely inserting “or” for “by.” In view of the charge as a whole, it is apparent that the jury could not have misunderstood the court’s language. See State v. Sanders, supra.

*602Defendant received a trial free of prejudicial error.

No error.

Chief Judge Brock and Judge Vaughn concur.