State v. Saults

• Citation: 294 N.C. 722,242 S.E.2d 801
• Decision Date: 17 April 1978
• Docket Number: No. 29,29
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Franklin Junior SAULTS.

Page 801

242 S.E.2d 801

294 N.C. 722

STATE of North Carolina v. Franklin Junior SAULTS.

No. 29.

Supreme Court of North Carolina.

April 17, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Douglas A. Johnston, Raleigh, for the State.

Bruce B. Briggs, Mars Hill, and Lloyd Hise, Jr., Spruce Pine, for defendant-appellant.

MOORE, Justice.

Defendant's conviction of accessory before the fact to arson is based upon the following bill of indictment:

"(T)hat on or about the 29th day of November, 1975, in Mitchell County, Franklin Junior Saults unlawfully and willfully did feloniously be and become an accessory before the fact to the wanton and willful burning of the inhabited dwelling of Ola Mae Yelton, located in the Glen Ayre Community of Mitchell County, said dwelling then and there being actually occupied by the said Ola Mae Yelton. The Defendant committed said offense by counseling, procuring, and commanding Jacky Lee Parker to commit a felony, to wit; arson, and in confirmation of said counseling and procuring and commanding of the said Jacky Lee Parker, he, the said Jacky Lee Parker, on or about the 29th day of November, 1975, did unlawfully, willfully, wantonly, and feloniously burn the inhabited dwelling of Ola Mae Yelton, located in the Glen Ayre Community of Mitchell County, said dwelling then and there being actually occupied by Ola Mae Yelton, after he, the said Jacky Lee Parker, had been paid the sum of $20.00 in money by the Defendant, Franklin Junior Saults, on the same day, to commit the felony of arson. . . ."

After verdict, but before sentence was imposed, defendant filed a motion in arrest of judgment for that "the Bill of Indictment does not charge an essential element of the common law crime of arson in that it does not allege that the burning was done or caused maliciously and therefore is fatally defective."

G.S. 15A-924 codifies the requirements of a criminal pleading. A criminal pleading must contain, inter alia:

"(5) A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation. . . ."

In State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953), in considering the validity of a bill of indictment, Parker, J. (later C. J.), stated:

"The authorities are in unison that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case. (Citations omitted.)"

While it is true, as defendant contends, that an indictment for arson must charge that the burning be done or caused maliciously, State v. Long, 243 N.C. 393, 90 S.E.2d 739 (1956), the fact remains that the indictment in the present case is not for arson, but rather charges defendant as being an accessory before the fact to arson. By statute, G.S. 14-5, the facts which formerly had been called "accessory before the fact" are made a substantive felony. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967). To justify the conviction of one as an accessory before the fact, three elements must concur, namely, that (1) defendant counseled, procured, commanded, or encouraged the principal to commit the crime, (2) defendant was not present when the crime was committed, and (3) the principal committed the crime. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). Maliciousness not being an element of the crime of accessory before the fact, it is not necessary to allege it in the indictment.

A similar situation was considered by this Court in State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976). In that case, a bill of indictment charged that the defendant "feloniously and burglariously broke and entered the dwelling house occupied by Susan Brogden 'with intent to kidnap the said Susan Brogden.' " There, Chief Justice Sharp, speaking for the Court, said: ". . . The indictment for burglary must specify the particular felony which the defendant is alleged to have intended to commit at the time of the breaking and entering . . . . However the felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is enough to state the offense generally and to designate it by name. See also 12 C.J.S. Burglary § 32 (1938). Under these rules the burglary indictment here was clearly sufficient."

In the case at bar the indictment charged that defendant was an accessory before the fact to the willful and wanton burning of the inhabited dwelling of Ola Mae Yelton, and further sets out specifically the facts which made defendant an accessory before the fact, using the words of G.S. 14-5; that is, that defendant committed said offense by "counseling, procuring and commanding Jacky Lee Parker to commit a felony; to wit, arson," and that as a result Parker did unlawfully, willfully, wantonly, and feloniously burn the inhabited dwelling of Ola Mae Yelton after he had been paid the sum of $20 by defendant. Such allegations were sufficient to put the defendant on notice that he was to be tried as an accessory before the fact to the crime of arson. The word "arson" has a definite legal meaning. Cf. State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966). Since the indictment alleges that defendant procured Parker to commit arson and to burn the house of another, viz, Ola Mae Yelton, defendant could not have been led to believe, as he contends, that he was being charged with accessory before the fact to the statutory offense set forth in G.S. 14-65, for the gravamen of that offense is the fraudulent burning of a house occupied by the defendant himself.

We believe, therefore, that this indictment charged the offense of accessory before the fact to arson with sufficient certainty to identify the offense; to protect the accused from being twice put in jeopardy for the same offense; to enable the accused to prepare for trial, and to enable the court, upon conviction, to pronounce sentence. Hence, we hold that the trial court did not err in overruling defendant's motion to arrest judgment. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); State v. Greer, supra.

Defendant also insists the court erred in instructing the jury that "the evidence shows that Jackie Lee Parker was an accomplice." The defendant contends that, by so stating, the court assumed a fact that was controverted by the defendant's plea of not guilty, namely, that the crime of arson was committed. In support of this argument, defendant cites State v. Swaringen, 249 N.C. 38, 105 S.E.2d 99 (1958). In that case, defendant was charged with operating a motor vehicle under the influence of intoxicating liquor. The State had the burden of showing that defendant operated a motor vehicle on a public highway while under the influence of intoxicating...