State v. Ham
| Decision Date | 12 June 1953 |
| Docket Number | No. 721,721 |
| Citation | 76 S.E.2d 346,238 N.C. 94 |
| Parties | STATE, v. HAM et al. |
| Court | North Carolina Supreme Court |
Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Robert L. Emanuel of Staff, Raleigh, for the State.
Bowie & Bowie, West Jefferson, and Higgins & McMichael, Winston-Salem, for defendant appellants.
The defendants assign as error the refusal of the court below to sustain their demurrer to the evidence under G.S. § 15-173. However, the assignment is abandoned as to all the defendants other than Leonard Teaster. They, no doubt, upon reflection, perceived that the evidence, considered in the light most favorable to the State, tends to show that they, acting in concert, made an assault with deadly weapons upon the deceased and her companions, and that in the course of the assault the deceased was killed. Their own testimony tends to show there was a 'free-for-all' affray during which Mrs. Church received the blow or blows upon her head which caused her death.
But the defendant Leonard Teaster insists that his demurrer to the evidence was well advised and should have been sustained. We are constrained to agree.
The testimony relied on by him tends to show that he remained in his automobile until the affray terminated. The State's eye witnesses, without exception, testified that he neither did nor said anything. He merely took his stand at the rear of his automobile and watched the fight.
All who are present 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 equally guilty. State v. Hoffman, 199 N.C. 328, 154 S.E. 314; State v. Holland, 234 N.C. 354, 67 S.E.2d 272.
An aider and abettor is one who advise, counsels, procures, or encourages another to commit a crime. State v. Hart, 186 N.C. 582, 120 S.E. 345; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Holland, supra.
To render one who does not actually participate in the commission of a 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 perpetrator of the crime or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary. State v. Holland, supra.
If the defendant Leonard Teaster is guilty at all, he is guilty under these principles of law enunciated in our decisions.
We are aware that some textbooks state that '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 that in contemplation of law this is aiding and abetting. Wharton's Crim. Law, 12th ed., ch. 9, sec. 246; and that this statement has been quoted in some of our decisions. State v. Williams, supra; State v. Holland, supra. Yet we find no decision of this Court in which it is held that evidence tending to show that a bystander was a friend of the perpetrator and the perpetrator was aware of his presence, and nothing more, is sufficient to support a conviction.
The defendant Jean Teaster was aware of the presence of her husband, and we may assume that in all probability this defendant would have intervened had it appeared to him that his wife was getting the worst of the encounter. But this is a pure surmise based on our knowledge of human nature and not an inference of fact supported by evidence.
While the facts and circumstances in respect to this defendant appearing from the testimony are consistent with his guilt, they are likewise consistent with his innocence. And the guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with his guilt. Nor may the enforcement of the criminal law be made to rest upon surmise or conjecture.
The cases cited and relied on by the State are factually distinguishable. In those and like cases there was evidence of some fact or circumstance tending to establish the defendant's actual participation in the commission of the crime charged.
The court in the course of its charge instructed the jury in part as follows:
'On the other hand, gentlemen of the jury, the prisoners and each of them say and contend that if you are so satisfied beyond a reasonable doubt that they, or either of them, inflicted a rock wound on the deceased and the deceased died as the proximate result thereof, then under the law he or she would be guilty of murder in the second degree * * *'
Thus the court in effect stated to the jury that defendants...
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State v. Shon
...mere negative acquiescence is not sufficient. * * *' Johnson v. United States, 195 F.2d 673, 675 (8th Cir., 1952). See also State v. Ham, 238 N.C. 94, 76 S.E.2d 346; Gibbs v. State, 223 Mis. 1, 77 So.2d 705; State v. Johnson, 57 N.M. 716, 263 P.2d 282. An aider and abettor may have a differ......
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State v. Lucas
...when and if it should become necessary." State v. Johnson, 310 N.C. 574, 579, 313 S.E.2d 560, 564 (1984) (quoting State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348 (1953)) (alteration in original). There is no obligation, however, to give an instruction on mere presence where the evidence i......
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State v. Beach
...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 motio......
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State v. Miller, 272--B
...578; State v. Gaines, supra; State v. Hargett, 255 N.C. 412, 121 S.E.2d 589; State v. Horner, 248 N.C. 342, 103 S.E.2d 694; State v. Ham, 238 N.C. 94, 76 S.E.2d 346. The speech of the solicitor for the State was taken down and transcribed by the court reporter and is in the record before us......