State v. Beach

• Decision Date: 09 May 1973
• Docket Number: No. 71,71
• Citation: 283 N.C. 261,196 S.E.2d 214
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Neil Douglas BEACH.

Page 214

196 S.E.2d 214

283 N.C. 261

STATE of North Carolina v. Neil Douglas BEACH.

No. 71.

Supreme Court of North Carolina.

May 9, 1973.

Atty. Gen., Robert Morgan, Asst. Atty. Gen., R. S. Weathers for the State.

BRANCH, Justice.

Defendant assigns as error the failure of the trial judge to grant his motions as of nonsuit.

The following principles of law control decision of this assignment of error:

One who advises, counsels, procures, encourages or assists another in the commission of a crime is an aider and abettor. State v. Benton, 276 N.C. 641, 174 S.E.2d 793; State v. Johnson, 220 N.C. 773, 18 S.E.2d 358; State v. Lambert, 196 N.C. 524, 146 S.E. 139; State v. Hart, 186 N.C. 582, 120 S.E. 345.

'A person aids and abets when he has 'that kind of connection with the commission of a crime which, at common law, rendered the person guilty as a principal in the second degree. It consisted in being present at the time and place, and in doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission."

State v. Davenport, 156 N.C. 596, 72 S.E. 7; State v. Epps, 213 N.C. 709, 197 S.E. 580. See also State v. Oliver, 268 N.C. 280, 150 S.E.2d 445; State v. Bruton, 264

N.C. 488, 142 S.E.2d 169; State v. Gaines, 260 N.C. 228, 132 S.E.2d 485.

This Court in the case of State v. Price, 280 N.C. 154, 184 S.E.2d 866, has defined an aider and abettor, or a principal in the second degree, as follows:

'. . . One who procures or commands another to commit a felony, accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinity for the purpose of aiding and abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon the completion of the offense, is a principal in the second degree and equally liable with the actual perpetrator. . . .'

In State v. Hargett, 255 N.C. 412, 121 S.E.2d 589, the definition is stated thusly:

"A person aids when, being present at the time and place, he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages another to commit a crime.' State v. Holland, 234 N.C. 354, 358, 67 S.E.2d 272, 274; State v. Johnson, 220 N.C. 773, 776, 18 S.E.2d 358. '. . . Mere presence, even with the intention of assisting in the commission of a crime cannot be said to have incited, encouraged or aided the prepetration thereof, unless the intention to assist was in some way communicated to him (the perpetrator). . . .' State v. Hoffman, 199 N.C. 328, 333, 154 S.E. 314, 316. However, there is an exception. '. . . when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement, and in contemplation of law this was aiding and abetting.' State v. Holland, supra.'

Defendant relies upon the cases of State v. Ham, 238 N.C. 94, 76 S.E.2d 346, State v. Hargett, supra, and State v. Gaines, supra, to support his contention that the trial judge should have allowed his motions as of nonsuit. These cases are factually distinguishable from this case in that the State in each was only able to show that defendant was present at the scene of the crime. There was no evidence that the defendants in any of these cases rendered aid to the perpetrator of the deed, or that any one of the defendants gave encouragement or made it known that he was present to lend aid to the perpetrator of the deed if it were needed.

In instant case, the State offered evidence tending to show that defendant (1) was present when the crime was committed, (2) operated the flashing lights on his automobile and blinded his headlights from bright to dim numerous times while driving close behind the Deaton automobile, thus causing that automobile to stop on the side of the road, (3) pulled alongside the Deaton automobile so that the gunman's window was flush with the driver's seat, (4) moved slowly along after the first shot was fired while the gunman fired five additional shots into the Deaton motor vehicle, (5) left the scene of the crime, (6) attempted to escape recognition, (7) pursued the Deaton automobile at high rates of speed, (8) denied to police officers that he had been in Burke County and later admitted being present.

We conclude that when taken in the light most favorable to the State there was sufficient evidence to allow the jury to find that defendant was present at the time the crime was committed, and that he rendered aid to the actual perpetrator of the crime.

We hold that there was sufficient evidence to repel defendant's motion as of nonsuit.

Defendant next contends that the trial court erred in placing him on trial as an aider and abettor to discharging a firearm into an occupied vehicle and as an aider and abettor to an assault with a firearm with intent to kill, because the State had previously tried Johnny Smith as the actual perpetrator of these crimes, and the said Johnny Smith was found to be not guilty of either charge.

It is not necessary that the person who actually perpetrated the deed be tried and convicted before the one who aided and abetted in the crime can be tried and convicted. State v. Jarrell, 141 N.C. 722, 53 S.E. 127. Indeed, this Court has held that where one principal has been acquitted at a former trial it was no bar to the trial of the others who were indicted as principals. State v. Whitt, 113 N.C. 716, 18 S.E. 715. See Annot., 24 A.L.R. 603; 21 Am.Jur.2d Criminal Law § 101. Obviously there must be proof that the offense has in fact been committed before one may be convicted of aiding and abetting in its commission. Cf. State v. Gainey, 273 N.C. 620, 160 S.E.2d 685; State v. Spruill, 214 N.C. 123, 198 S.E. 611.

We find the following statement in 21 Am.Jur.2d Criminal Law § 128, n. 15, to wit: 'The fact that one mistakenly supposed to have committed a crime was tried therefor and acquitted does not affect the guilt of one proven to have been present aiding and abetting, so long as it is established that the crime was committed by someone.'

This Court has recognized that an indictment may properly allege unknown conspirators in charging a criminal conspiracy. State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25; State v. Lewis, 142 N.C. 626, 55 S.E. 600. It rationally follows that an indictment is valid which alleges the existence of an unknown co-principal in charging a crime.

Here the bills of indictment do not allege that Johnny Smith was the person who actually perpetrated the offenses. The indictments charged that a crime was committed by an unknown person and that defendant was present, aiding and abetting in the deed. Thus the acquittal of Johnny Smith was not a sufficient basis for dismissal of the charges.

Defendant assigns as error the failure of the trial judge to submit to the jury the misdemeanor charge of assault with a deadly weapon.

Assault with a deadly weapon is a lesser included offense of assault with a firearm with intent to kill.

When there is evidence of a lesser included offense of the crime, the court must charge upon the milder offense even when there is no specific prayer for such charge. State v. Riera, 276 N.C. 361, 172 S.E.2d 535; State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83.

Here, the jury returned a verdict of not guilty of the greater offense which was tantamount to a verdict of not guilty of all lesser included offenses. 5 Am.Jur.2d Appeal and Error § 792. Therefore, the jury verdict rendered nonprejudicial the failure of the trial judge to submit the lesser included offense of aiding and abetting in an assault with a deadly weapon.

Defendant contends his motions to quash the indictments were erroneously denied because each failed to allege how defendant aided and abetted.

The requirements for a valid indictment are stated in State v. Greer, 238 N.C. 325, 77 S.E.2d 917, as follows:

'. . . (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. State v. Cole, 202 N.C. 592, 163 S.E. 594; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Miller, 231 N.C. 419, 57 S.E.2d 392; State v. Gibbs, 234 N.C. 259, 66 S.E.2d 883.'

G.S. § 15--153 provides:

'Every criminal proceeding by warrant, indictment, information, or impeachment is sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment.'

This statute has been liberally construed by our Court, State v. Greer, supra; nevertheless, the statute does not dispense with the requirement that the essential elements of the offense must be charged. State v. McBane, 276 N.C. 60, 170 S.E.2d 913.

Defendant relies on this passage from State v. Greer, supra:

'The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense of charged in the words of the statute, either literally or substantially, or in equivalent words. State v....