State v. Bryson

• Citation: 92 S.E. 698,173 N.C. 803
• Decision Date: 26 May 1917
• Docket Number: 569.
• Parties: STATE v. BRYSON.
• Court: United States State Supreme Court of North Carolina

92 S.E. 698

173 N.C. 803

STATE v. BRYSON.

No. 569.

Supreme Court of North Carolina

May 26, 1917

Appeal from Superior Court, Jackson County; Harding, Judge.

Robert Bryson was convicted of second degree murder, and appeals. Affirmed.

Allen J., dissenting.

Bryson & Black, of Bryson City, and Sisk & West, of Franklin, for appellant.

The Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State.

CLARK C.J.

The appellant, Robert Bryson, and Sallie Bryson, his daughter were indicted for the murder of Alice Bryson, wife of the prisoner and mother of his codefendant. Upon arraignment Sallie Bryson, through her counsel, tendered a plea of "guilty of murder in the second degree," which was accepted by the state, and she was sentenced to 20 years in the state's prison. Upon the trial Robert Bryson was found guilty of murder in the second degree and sentenced to 20 years in the state's prison, and appealed.

Exceptions 1, 2, and 3 are specifically abandoned in the brief, and 7 and 8, not being brought forward in the brief, are therefore deemed to be abandoned. Rule 34 (66 S.E. ix) of this court. Exception 4 is to the charge in regard to premeditation and deliberation, and has been eliminated by the verdict of murder in the second degree. Exception 12 is for the refusal to arrest the judgment upon the ground that the prisoner could not be convicted of murder in the second degree because the evidence disclosed that he was an accessory before the fact and not a principal. A motion to arrest can be allowed only for a defect appearing upon the face of the indictment and the charge here is of murder, and the conviction is of murder in the second degree. Under Revisal, § 3269, it is provided:

"Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of same crime."

There is no defect, therefore, in the indictment or in the record which would justify an arrest of judgment. Indeed Revisal, § 3271, authorizes the conviction of murder in the second degree upon an indictment for murder in the first degree. Nor would the prisoner be entitled to a remand for resentence, for Revisal, § 3290, provides:

"Any person who shall be convicted as an accessory before the fact in either of the crimes of murder, arson, burglary or rape, shall be imprisoned for life in the state's prison."

The prisoner has been sentenced to 20 years, which certainly cannot exceed the punishment for life, to which he would have been subject if convicted of being accessory before the fact.

The prisoner's contentions are presented by exception 5 for refusal to charge, as requested, that only those who are present at the commission of the crime are deemed principals therein, and that one who was not present at the time the crime was committed, which he counseled, procured, or commanded, would be an accessory before the fact, and could not be convicted under a charge of murder, and that the jury must be satisfied beyond a reasonable doubt that Robert Bryson was actually present at the time the deceased came to her death as the result of a gunshot wound inflicted upon her by said Sallie Bryson, and if the state fail to satisfy the jury beyond a reasonable doubt of the presence of said prisoner, Robert Bryson, at the time of the infliction of the wound, then it would be the duty of the jury to return a verdict of not guilty. As a corollary to this, the prisoner further insists on exception 13 that he--

"has been placed in jeopardy upon a bill of indictment, regular in its form, charging him as principal with the murder of Alice Bryson, and that he duly entered a plea of not guilty upon an arraignment properly had, and that a jury had been regularly selected, chosen, and impaneled to try the issue joined between himself and the state upon such bill of indictment, and that, the evidence having disclosed the fact that he could in no view be deemed as principal, and that therefore any verdict rendered upon said bill is void, and he having been placed in jeopardy under the charge preferred against him, and there being no charge against him as accessory, either before or after the fact, the court should have sustained his motion and ordered his discharge."

The prisoner's contention is that he should have been tried as accessory before the fact for the murder (for which a higher sentence could be imposed than that which he received), and that, having been in jeopardy upon this charge as sharing in the murder, he cannot hereafter be tried for having been connected in any way with the murder of his wife, and should be discharged. Formerly there was a technical distinction between principals in the murder, and accessories before the fact, which required that accessories should not be tried before the conviction of principals, and this often led to a miscarriage of justice, for which statutes have been passed in this and probably in all jurisdictions. The correctness of the prisoner's contentions depends upon Revisal, § 3287, which, omitting the parts not material to this appeal, reads as follows:

"Accessories to felonies before the fact; when, where, and how tried and punished. If any person shall counsel, procure or command any other person to commit any felony * * * the person so counseling, procuring, or commanding shall be guilty of felony, and may be indicted and convicted,

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