State v. White

Justice Webb

dissenting.

I dissent. In overruling State v. Hurst, 320 N.C. 589 , 359 S.E. 2d 776 (1987), this Court has reversed itself on a question it decided less than one year previously. In order to accomplish this result, this Court has not adopted the rationale of the dissent in Hurst but has adopted a new theory for application in this case. The dissent in Hurst was based on the premise that the General Assembly did not intend a defendant to be punished for armed robbery and larceny for a single taking from a single victim at one time. In this case the majority has concluded that larceny is a lesser included offense of armed robbery. This reversal of itself at the first opportunity, with the application of a principle which not one member of the Court felt was applicable last year, can hardly add to the stability or confidence in our law.

I believe there are stronger reasons why the majority is wrong. We have held that when a crime for which the defendant is charged contains all the essential elements of another crime, all of which could be proved by proof of the allegations in the indictment, the second crime is a lesser included offense of the first crime. State v. Weaver, 306 N.C. 629 , 295 S.E. 2d 375 (1982). This is a definition which was developed in our common law and is not a legislative creation. The majority has refused to analyze this rule in deciding this case. Indeed they cannot because it leads to the conclusion that larceny is not a lesser included offense of armed robbery. Asportation is an element of larceny, State v. Perry, 305 N.C. 225 , 287 S.E. 2d 810 (1982), and is not an element of armed robbery. N.C.G.S. § 14-87(a) (1986). One type of felony larceny requires that the property stolen have a value exceeding $400, N.C.G.S. § 14-72(a), while the value of the property stolen is not an element of armed robbery. N.C.G.S. § 14-87(a) (1986). Under the only test we have had until today for what determines a lesser included offense, larceny is not a lesser included offense of armed robbery.

*520 Rather than apply the principle we have always held should be used in determining what is a lesser included offense, the majority simply says, “[i]n light of the legislative intent in enacting N.C.G.S. § 14-87, the long-standing and extensive case law interpreting this statutory section and establishing our former rule that larceny is a lesser included offense of armed robbery, and the natural relationship between armed robbery and larceny, we hold that larceny is a lesser included offense of armed robbery.” I do not believe there is validity to any of the propositions which the majority advances to justify its overruling of Hurst, State v. Murray, 310 N.C. 541 , 313 S.E. 2d 523 (1984); State v. Beaty, 306 N.C. 491 , 293 S.E. 2d 760 (1982) and State v. Revelle, 301 N.C. 153 , 270 S.E. 2d 476 (1980). If there were validity to them, I do not believe they are sufficient reasons to support the majority’s conclusion.

In support of the proposition that the legislative intent in enacting N.C.G.S. § 14-87(a) was that larceny should be a lesser included offense of armed robbery, the majority goes to some length to establish the legislative history of the act. Nowhere do they tell us why the history of the statute shows the legislative intent was that larceny be a lesser included offense of armed robbery. The fact that the legislative intent was that an attempted taking should be punished as severely as a taking does not help the majority to its conclusion. Whatever the intent of the legislature, it is the courts which must determine what is a lesser included offense.

In support of its proposition that extensive case law has established that larceny is a lesser included offense of armed robbery, the majority says, “[f]or many years, the law in North Carolina was that larceny was a lesser included offense of armed robbery,” quoting State v. Black, 286 N.C. 191, 194 , 209 S.E. 2d 458, 460-61 (1974), and citing several other cases. The quotation from Black is dictum. In most of the other cases cited by the majority, the statement that larceny is a lesser included offense of armed robbery is dictum and more significantly in none of the cases does this Court analyze the principles of lesser included offenses as was done in Murray, Beaty, Revelle and Hurst . I believe we should follow the cases that have taken into account the principles that govern this case. It is true, as the majority says, that Murray, Beaty and Revelle could have been resolved without *521 relying on the lesser included offense analysis. This analysis was used in these cases, however, and in Murray this was the rationale for deciding the case. We have now overruled the only cases which have discussed the principles of lesser included offenses as the law has developed in North Carolina.

In support of the proposition that there is a natural or special relationship between armed robbery and larceny, the majority says that both crimes involve an unlawful and willful taking of another person’s property and we have said armed robbery is an aggravated form of larceny. There are many crimes which are somewhat similar to other crimes. If we are to use as a test that such a relationship makes one of the crimes a lesser included offense of the other, we are on a difficult path. It will be difficult indeed for the bench and bar to know they cannot rely on a well-defined principle in determining what is a lesser included offense. Instead, they must discern whether this Court might determine that a special relationship exists between the two crimes, in which case the rule does not apply.

A lesser included offense is not something a court should define as it wants to do. Lesser included offenses have been defined by following established principles. One reason for the rule is that it is fundamentally unfair to punish a defendant for both offenses when he has been convicted of the greater, unless the legislature evinces a clear intent to the contrary. One method we have for providing impartiality in the law is to follow legal principles. I believe it is a mistake not to do so now.

I also believe the majority is mistaken in saying NiC.G.S. § 14-87(a) defines two crimes, armed robbery and attempted armed robbery. I believe there is one crime of armed robbery with alternate elements, a taking or an attempted taking. If we say, as the majority implicitly does, that N.C.G.S. § 14-87(a) defines a crime of attempted armed robbery, we run head-on into the traditional definition of an attempted crime. An attempted crime is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission. State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853 (1956); State v. Bailey, 4 N.C. App. 407, 167 S.E. 2d 24 (1969). If there is now to be the crime of attempted armed robbery, which requires proof of the elements defined in N.C.G.S. § 14-87(a), and *522 the State cannot prove all these elements but can prove a person has done some act with the intent to commit the crime, it could not be attempted armed robbery. That name has been reserved. I suppose it would be attempted attempted armed robbery. If the majority wants to name the new crime they say is defined by N.C.G.S. § 14-87(a), I believe for semantic reasons it should not be called attempted armed robbery.

In deciding this case as we have, I believe we have unnecessarily complicated the law and made it more difficult to apply. In every case of armed robbery which will now be tried, the court must determine if larceny must be submitted to the jury with the risk of a new trial if an appellate court says the decision is wrong. There are different elements of the two crimes and if the State wants larceny submitted as a lesser included offense, I presume it will have to offer evidence of value and asportation in addition to proof of the elements of armed robbery. I believe it is a mistake to require evidence which is irrelevant to the crime for which the defendant is charged. How to charge on a lesser included offense which contains elements different from the greater offense will be difficult but we can leave that for another day.

I believe the principle which-the majority declines to follow is a good one. I regret we have not followed it in this case.

Justices Meyer and Mitchell join in this dissenting opinion.