State v. Berryman, 7114SC102

• Decision Date: 31 March 1971
• Docket Number: No. 7114SC102,7114SC102
• Citation: 10 N.C.App. 649,179 S.E.2d 875
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Charles Ray BERRYMAN, Samuel Jones, Terry M. Luse, Harold McRae, John Ruth andJudge Buster Bobbitt.

Page 875

179 S.E.2d 875

10 N.C.App. 649

STATE of North Carolina v. Charles Ray BERRYMAN, Samuel Jones, Terry M. Luse, Harold McRae, John Ruth andJudge Buster Bobbitt.

No. 7114SC102.

Court of Appeals of North Carolina.

March 31, 1971.

Atty. Gen. Robert Morgan by Staff Atty. James L. Blackburn, Raleigh, for the State.

Lina Lee S. Stout, Durham, for defendants appellants.

PARKER, Judge.

Appellant assigns no error with respect to his trial and conviction on the charge of simple assault. He does assign as error the denial of his motion for nonsuit in the robbery case. In this regard, appellant Berryman, not having offered evidence, is entitled to have his motion for nonsuit passed upon on the basis of the facts in evidence when the State rested its case. G.S. § 15--173; State v. Frazier and State v. Givens, 268 N.C. 249, 150 S.E.2d 431. Hence, we do not consider the testimony of the codefendant Jones to the effect that Berryman had handed Crabtree's pocketbook and knife to Jones.

Appellant's contention is that when the State's evidence alone is looked to, it is insufficient to support a jury finding as a fairly logical and legitimate deduction that defendant had any intent permanently to deprive Crabtree of any of his property and that the State therefore failed to introduce sufficient evidence from which the jury could legitimately find an intent to steal, which is one of the essential elements of the crime of robbery. In support of this contention, appellant points particularly to Crabtree's testimony to the effect that Berryman, after taking Crabtree's knife and keys from his pocket, placed these articles on the bench or table and that Crabtree did not thereafter see Berryman touch these articles.

It is elementary that in passing upon a motion for nonsuit in a criminal case the evidence must be considered by the court in the light most favorable to the State and the State must be given the benefit of every reasonable inference to be drawn therefrom. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679. When the State's evidence in the present case is so considered, the jury could legitimately find that Berryman was present and was actively aiding and abetting Jones when the latter removed Crabtree's wallet from his pocket and carried it away. 'It is well settled that one who is present, aiding and abetting in a crime actually perpetrated by another, is equally guilty with the actual perpetrator.' State v. Garnett, 4 N.C.App. 367, 167 S.E.2d 63. ...