State v. Benton, 17

• Citation: 276 N.C. 641,174 S.E.2d 793
• Decision Date: 12 June 1970
• Docket Number: No. 17,17
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Mary Benton BENTON.

Page 793

174 S.E.2d 793

276 N.C. 641

STATE of North Carolina v. Mary Benton BENTON.

No. 17.

Supreme Court of North Carolina.

June 12, 1970.

Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., and D. M. Jacobs, Staff Atty., Raleigh, for the State.

Byrd, Byrd & Ervin, Morganton, for defendant-appellant.

SHARP, Justice.

Appellant enumerates 26 assignments of error. Those brought forward, which we deem entitled to consideration, will be discussed topically.

Assignments Nos. 1, 2, and 3 raise the question whether the trial judge abused his discretion in holding that Epley had sufficient mental capacity to be a competent witness. The North Carolina rule is well stated in 97 C.J.S. Witnesses § 57b (1957): 'Unsoundness of mind does not per se render a witness incompetent, the general rule being that a lunatic or weakminded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rests largely within the discretion of the trial court.' Accord, Lanier v. Bryan, 184 N.C. 235, 114 S.E. 6, 26 A.L.R. 1488; Carpenter, Solicitor v. Boyles, 213 N.C. 432, 196 S.E. 850; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Stansbury, N.C. Evidence § 55 (2d ed. 1963).

Defendant's thesis seems to be that the judge manifestly acted against reason when he permitted Epley to become a witness after Dr. Darrow, the psychiatrist employed at the instance of Epley's attorneys prior to his trial for murder, had testified, that in his opinion, it was impossible for Epley to give reliable testimony. This contention is untenable. The law does not say that the decision of the trial judge as to the competency of a witness shall be controlled by expert medical testimony or that the evidence of a psychiatrist, whether employed by the State or defendant, or appointed by the Court, is entitled to greater weight than that of a qualified lay witness. 'Anyone who has observed another, or conversed with him, or had dealings with him, and a reasonable opportunity, based thereon, of forming an opinion satisfactory to himself as to the mental condition of such person, is permitted to give his opinion in evidence upon the issue of mental capacity, although the witness be not a psychiatrist or expert in mental disorders.' In Re Will of Brown, 203 N.C. 347, 350, 166 S.E. 72, 74; Stansbury, N.C. Evidence § 127 (2d ed. 1963).

At the time Dr. Darrow testified, he had not seen Epley since 13 March 1968, more than a year and a half prior to the trial which we now review. Between December 1967 and 13 March 1968, Dr. Darrow had examined Epley four times while he was in jail awaiting his own trial upon a charge of first-degree murder. During that three and one-half-month period, despite the tensions, apprehensions, and uncertainties to which he was necessarily subjected, Epley's mental condition had improved. On the Voir dire, Judge Martin observed and questioned Epley closely. He made his observations, as well as his questions, a part of the record, and from them concluded that Epley was a competent witness. The court's decision could be set aside only for a clear abuse of discretion or upon a showing that it was based upon an erroneous conception of the law. Neither abuse of discretion nor error in law appears. Indeed, Epley's subsequent testimony and conduct in court fully justified the court's ruling on Voir dire. Although Epley's memory as to details sometimes faltered, and there were minor inconsistencies in his evidence, as to all material matters his testimony was clear and consistent. Furthermore, it was fully corroborated by the testimony of the law-enforcement officers, his brother, and his mother. Finally, we note that the jurors also had full and ample opportunity to observe Epley, and they were charged that even though defendant counseled and commanded him to kill Benton they would acquit her unless they found that Epley had sufficient mental capacity to understand and carry out her commands and unless he actually killed Benton 'as the result of such alleged acts of defendant.'

In her brief, appellant asserts that the question raised by assignments of error 24, 25, and 9 is as follows: '4. Did the trial judge commit error by incorrectly charging the jury as to the mental capacity required of the principal (Epley)? (Assignments of Error Nos. 24 and 25). (a) Did the trial court commit error when it excluded evidence as to the sanity of the principal at the time the act was committed? (Assignment of Error No. 9.)' These three assignments, however, do not bring into focus the main points which defendant attempts to make.

Assignments 24 and 25 respectively aver that the judge committed error 'in charging the jury on the mental capacity of the principal, Raymond Epley' and that he 'incorrectly charged' concerning the mental capacity of Epley. These assignments present no question for the court's determination, for they do not not set out that portion of the charge which defendant contends is an erroneous statement of the law. 'The appellant should quote in each assignment the part of the charge to which he objects.' State v. Wilson, 263 N.C. 533, 534, 139 S.E.2d 736, 737. '(A) mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient.' State v. Staten, 271 N.C. 600, 608, 157 S.E.2d 225, 231.

Assignment of error No. 9 is based upon an exception to the court's failure to permit Dr. Darrow to answer the following question: 'Do you have an opinion as to whether or not Raymond Epley knew right from wrong on the 27th day of November, 1967?' If permitted to answer, Dr. Darrow would have said that, in his opinion, at the time of the alleged murder in November 1967, Epley 'did not have the ability to know the difference between right and wrong because of his mental illness.'

The objection to the foregoing question was properly sustained. Insanity will exempt an accused from criminal responsibility only if, at the time he commits the act which would otherwise be illegal, he was incapable of knowing the nature and quality of his act or of distinguishing between right and wrong with relation thereto. In other words, the question is the capacity of a defendant 'to distinguish between right and wrong at the time and in respect of the matter under investigation.' State v. Jones, 229 N.C. 596, 598, 50 S.E.2d 723, 724. Accord, State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Mercer, 275 N.C. 108, 165 S.E.2d 328. The question is not whether a defendant knows or knew right from wrong generally.

In her brief, appellant says that she should 'have had the benefit of a charge by the court to the effect that if Raymond Epley was insane at the time the alleged killing occurred, then it would be the duty of the jury to find the defendant not guilty.' The record, however, fails to show that appellant excepted in any manner to the court's failure to so charge. State v. Hill, 266 N.C. 103, 145 S.E.2d 346. To be effective '(a)n assignment based on failure to charge should set out the defendant's contention as to what the court should have charged.' State v. Wilson, 263 N.C. 533, 534, 139 S.E.2d 736, 737.

Neither assignments 24, 25 nor assignment 9 presents the question of the court's failure to charge upon Epley's alleged exemption from criminal responsibility by reason of insanity as bearing upon defendant's guilt as his accessory. However, we can perceive no prejudice to defendant from the court's failure to instruct the jury that if Epley, by reason of insanity, was not guilty of the murder of Benton then appellant could not be guilty as an accessory before the fact in the murder charged, for all the evidence tends to show that if defendant was not an accessory she was the principal felon and guilty of murder in the first degree.

Parties involved in the commission of a murder are either principals or accessories. State v. Minton, 234 N.C. 716, 68 S.E.2d 844. 'A principal in the first degree is the person who actually perpetrates the deed either by his own hand Or through an innocent agent.' (Emphasis added.) Any other who is actually or constructively present at the place of the crime either aiding, abetting, assisting, or advising in its commission, or is present for that purpose, is a principal in the second degree. Miller, Criminal Law §§ 73, 74, 75 (1934). Accord, State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Jarrell, 141 N.C. 722, 53 S.E. 127. In our law, however, 'the distinction between principals in the first and second degrees is a distinction without a difference.' Both are principals and equally guilty. State v. Allison, 200 N.C. 190, 194, 156 S.E. 547, 549; Accord, State v. Gaines, 260 N.C. 228, 132 S.E.2d 485; State v. Peeden, 253 N.C. 562, 117 S.E.2d 398. An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. State v. Benton, 275 N.C. 378, 167 S.E.2d 775; State v. Bass, 255 N.C. 42, 120 S.E.2d 580; Miller, Supra, § 76; 22 C.J.S. Criminal Law § 90 (1961).

Thus, ordinarily, the only distinction between a principal and an accessory before the fact is that the latter was not present when the crime was actually committed. In some states, by statute, all distinction between a principal and accessory before the fact has been abolished, 22 C.J.S. Criminal Law § 90 (1961); 1 Wharton's Criminal Law and Procedure § 110 (Anderson, 1957); 40 Am.Jur.2d Homicide § 28 (1968). See State v. Bryson, 173 N.C. 803, 92 S.E. 698, and the comments thereon in 41 N.C.L.Rev. 118 and State v. Jones, 254 N.C. 450, 119 S.E.2d 213. Actual presence, however, becomes immaterial when a person causes a crime to be committed by an innocent agent, that...