STATE v. ELLERBE, 23 N.C. App. 708 (1974)

209 S.E.2d 813

STATE OF NORTH CAROLINA v. RALPH EDWARD ELLERBE

No. 7412SC767North Carolina Court of Appeals
Filed 20 November 1974

Robbery 4 — armed robbery — sufficiency of evidence The State’s evidence was sufficient for the jury in a prosecution for armed robbery of a convenience store.

APPEAL by defendant from Smith, Judge, 22 June 1974 Session of Superior Court held in CUMBERLAND County. Heard in the Court of Appeals on 21 October 1974.

This is a criminal prosecution wherein the defendant, Ralph Edward Ellerbee, was charged in a bill of indictment, proper in form, with armed robbery. The jury returned a verdict of guilty as charged, and the court sentenced the defendant to a prison term of thirty (30) years. Defendant appealed.

Attorney General James H. Carson, Jr., by Assistant Attorney General George W. Boylan for the State.

Gadsden and Swindell by Mitchel E. Gadsden for defendant appellant.

HEDRICK, Judge.

The sole question for resolution on this appeal is whether the trial court erred in denying defendant’s timely motions for judgment as of nonsuit.

Page 709

Ted O. Rhodes appeared at the trial as a witness for the State and testified that on 7 July 1971 he was the president of J C Sales, Inc., which operated a convenience store in Fayetteville, N.C. At 9:45 p.m. that night, while Rhodes was working at the store, the defendant and another man came into the store, each carrying a pistol. The defendant ordered Rhodes to open the cash register and give him all the money in it. Rhodes had difficulty opening the cash register, and defendant said to him: “I am going to count to three; if you don’t have that cash register open by the time I count to three, I am going to kill you.” When Rhodes continued to have trouble in opening the cash register, the defendant moved to within a few inches of him and attempted to open the drawer. Rhodes finally succeeded in opening the cash register and gave the defendant $518.16 in cash. Defendant took the money, jerked the store telephone out of the wall, and ran out of the store.

Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Lawrence, 262 N.C. 162, 163, 136 S.E.2d 595, 597
(1964). Armed robbery adds the requirement that the robbery must be “with the use or threatened use of [a firearm] . . . whereby the life of a person is endangered or threatened . . . .” G.S. 14-87. Viewing the testimony of Rhodes in the light most favorable to the State, it is clear that the evidence is sufficient to require submission of the case to the jury and to support a conviction for robbery with a firearm.

In this trial, we find no error.

No error.

Judges MORRIS and BALEY concur.