State v. Burgess, 364

• Decision Date: 11 January 1957
• Docket Number: No. 364,364
• Citation: 96 S.E.2d 54,245 N.C. 304
• Parties: STATE, v. Ralph BURGESS, Wayne Watson, Nell Davis, Travis Triplett and Frank Martin.
• Court: North Carolina Supreme Court

Page 54

96 S.E.2d 54

245 N.C. 304

STATE, v. Ralph BURGESS, Wayne Watson, Nell Davis, Travis Triplett and Frank Martin.

No. 364.

Supreme Court of North Carolina.

Jan. 11, 1957.

Atty. Gen. George B. Patton, Asst. Atty. Gen. Claude L. Love, for the State.

Justus C. Rudisill, Jr., Newton, McLaughlin & Battley, Statesville, Allen, Henderson & Williams, Elkin, for defendant Ralph Burgess.

Frank C. Patton, Morganton, Wade H. Lefler, Newton, Ray Jennings, Moravian Falls, W. H. McElwee, North Wilkesboro, for the other defendants.

DENNY, Justice.

The defendants Watson, Davis, Martin and Triplett are insisting upon a new trial, while the defendant Burgess strenuously argues and contends that his motion for judgment as of nonsuit should be allowed and assigns the denial thereof as error.

The defendant Burgess takes the position that there is no evidence that Hoglen was actually assaulted by him or that he participated in any manner in the assaults upon Hoglen or that he encouraged, aided or abetted the perpetrators of the assaults. He further contends that while there is evidence of his presence at the cabin on two occasions while Hoglen was there, there is no evidence that Hoglen was assaulted by anyone in his presence. This defendant is relying on State v. Ham, 238 N.C.94, 76 S.E.2d 346; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Johnson, 220 N.C. 773, 18 S.E.2d 358, and State v. Hart, 186 N.C. 582, 120 S.E. 345, to sustain his position.

In the case of State v. Ham, supra, this Court, in substance, held that in order to render one who does not actually participate in the commission of the crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrators of the crime, or by his conduct made it known to such perpetrators that he was standing by to render assistance when and if it should become necessary.

An aider and abettor is defined in our decisions as one who advises, counsels, procures or encourages another to commit a crime. State v. Hart, supra; State v. Holland, supra; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Ham, supra.

In the case of State v. Birchfield, supra [235 N.C. 410, 70 S.E.2d 7], Ervin, J., speaking for the Court, said: 'The mere presence of a person at the scene of a crime at the time of its commission does not make him a principal in the second degree; and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crime, or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes necessary to its consummation.'

In State v. Holland, supra, it is said [234 N.C. 354, 67 S.E.2d 274]: 'It is settled law that all who are present (either actually or constructively) at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose, to the knowledge of the actual perpetrator, are principals and are equally guilty.'

In the case of State v. Johnson, supra, the Court said [220 N.C. 773, 18 S.E.2d 360]: 'A person aids when being present at the time and place he does some act to render aid to the actual perpetration of the crime, though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or who either commands, advises, instigates or encourages another to commit a crime.'

Stacy, C. J., in speaking for the Court in the case of State v. Hart, supra, said [186 N.C. 582, 120 S.E. 346]: 'An 'aider and abettor' is one who advises, counsels, procures, or encourages another to commit a crime, whether personally present or not at the time and place of the commission of the offense.'

In 22 C.J.S., Criminal Law, § 79, p. 143, it is said: 'A person is a party to an offense if he either actually commits the offense or does some act which forms a part thereof, or if he assists in the actual commission of the offense or of any act which forms part thereof, or directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof. To constitute one a party to an offense it has been held to be essential that he be concerned in its commission in some affirmative manner, as by actual commission of the crime or by aiding and abetting in its commission and it has been regarded as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent.'

In passing upon a motion for nonsuit, the evidence must be considered in the light most favorable to the State, and it is entitled to the benefit of every reasonable inference to be drawn therefrom. State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Gentry, 228 N.C. 643, 46 S.E 2d 863; State v. Ritter, 239 N.C. 89, 79 S.E.2d 164.

There can be no conjecture about the evidence tending to show these facts: For some time prior to the occasion in question, Hoglen was employed by the defendants Burgess and Watson to drive a truck for them; that the defendant Davis and Hoglen were sent to Washington by Burgess and Watson to buy a truck load of liquor; that Burgess gave Hoglen $13,000 in cash for this purpose and Bud Watts gave him $1,000, while unnamed parties gave him $4,000; that all together Davis and Hoglen were entrusted with $18,000, and their truck. The money was lost. When Hoglen got back to Taylorsville he was met by Davis, an employee of Burgess, Watson, one of the employers of Hoglen, and one Triplett. Davis informed Hoglen that Burgess was at the cabin, which turned out to be near Oxford...