State v. Hart

• Decision Date: 05 December 1923
• Docket Number: 321.
• Parties: STATE v. HART.
• Court: North Carolina Supreme Court

120 S.E. 345

186 N.C. 582

STATE v. HART.

No. 321.

Supreme Court of North Carolina

December 5, 1923

Appeal from Superior Court, Granville County; Bond, Judge.

Robert J. Hart was convicted of aiding and abetting another to have carnal knowledge of a female child, and appeals. Venire de novo.

Clarkson and Clark, JJ., dissenting.

Evidence on prosecution for statutory rape, of one aiding and abetting, held sufficient to go to the jury.

Criminal prosecution, tried upon an indictment charging H. S. Hicks and Robert J. Hart with having carnal knowledge of a female child over 12 and under 14 years of age, who had never before had sexual intercourse with any person. C. S. 4209.

The alleged offense of which the defendant was convicted occurred on the 6th day of February, 1923, while the superior court of Granville county was in session. There was a preliminary hearing on the following day, before a justice of the peace and both Hicks and Hart were bound over to the superior court. The case against Hart was tried in the superior court at the term then in session. Hicks, who was engaged in some highway work at Oxford, failed to appear and forfeited his bond. The material facts are as follows:

On the night of the alleged offense, the defendant Hart, a boy 16 years of age, was returning to his work at Lyon's drug store, when he saw Hicks and a companion named Gill engaged in a conversation on the street. He stopped to talk with them, and very soon Gill mentioned the name of the prosecutrix. Hicks asked the defendant Hart if he knew the girl and requested that he go with him in his one-seated Ford coupé to her home and they would bring her to the drug store for a drink. This, Hart agreed to do.

When they reached the home of the prosecutrix, Hicks remained in the automobile while Hart went to the door and asked for the girl. They had some conversation about going to the drug store; and, after obtaining her mother's consent, the prosecutrix got into the car with Hicks and Hart, she sitting on the seat between them, and Hicks drove away. When they reached the corner at which it was necessary to turn in order to go to the drug store, Hicks drove his car in the opposite direction. Hart asked if they were not going to the drug store. Hicks said they did not want a drink, and the prosecutrix said that she would just as soon ride around.

As they were riding out College street, Hicks and the prosecutrix engaged in a conversation which Hart could not hear on account of the noise of the machine. When they had passed out beyond the hospital and across the railroad, Hicks stopped the car on the side of the road and asked Hart if he had a rubber. (The prosecutrix said on her direct examination in the superior court that Hart asked Hicks about a rubber, but on her cross-examination she said she did not know which one asked the question. On her examination before the magistrate she said Hicks made the inquiry, and this is in accord with Hart's testimony.)

From this point on, there is a conflict in the evidence for the state and that of the defendant.

The prosecutrix testified that Hicks offered to get out of the car first, but that Hart said no, he would get out, and he did. Hicks then had sexual intercourse with the prosecutrix without any resistance on her part, as she testified:

"I did not attempt to resist. He was in the car with me about seven minutes. Hicks got up and did not say anything. Robert Hart was then standing at the door of the car. Hicks got out of the car. Hart got in the car. He said he was going to do what Hicks did. I told him that he was not, and he blew the horn, and Hicks got in and turned the car around, and we came back to town."

Hart testified that he had no knowledge of Hicks' ulterior purpose until he asked about a rubber, and that he then told Hicks that if he was going to do anything like that he would get out of the car and go back to town. He did get out and had started back when he decided that, as he had gone to the girl's home and asked her to go with them for a drink, he ought not to leave her; whereupon, he turned around and went back to the car, and they all three came back to Oxford. When they reached the home of the prosecutrix, Hart helped her out of the car and went to the door with her. She asked him what excuse she should give her mother for staying out so late. Hart suggested she might say they were detained at the store on account of a rush and he was busy waiting on customers.

The prosecutrix told her mother, soon after she reached home, that she had been abused, but she stated to her father that Hart had treated her like a gentleman. He did not have intercourse with her. The prosecutrix further testified that she was 13 years old and had never had intercourse with any other person; that she had not been introduced to Hicks before that night, though she had talked with him on the street.

Hart was convicted of aiding and abetting Hicks in the commission of the alleged offense and sentenced to five years in the state's prison. He appeals, assigning errors.

Hicks & Stem and Parham & Lassiter, both of Oxford, and Brogden, Reade & Bryant, of Durham, for appellant.

J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY J.

The defendant's demurrer to the evidence and motion for dismissal, or for judgment as of nonsuit under C. S. 4643, was properly overruled. 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. 2 C.J. 1024. And if two persons aid and abet each other in the commission of a crime, both being present, both are principals and equally guilty. State v. Jarrell, 141 N.C. 722, 53 S.E. 127, 8 Ann. Cas. 438; State v. Skeen, 182 N.C. 844, 109 S.E. 71.

In State v. Davenport, 156 N.C. 614, 72 S.E. 14 (opinion by Walker, J.), it is said:

"A person aids and abets when he has 'that kind of connection with the commission of a crime which, at common law, rendered the person guilty as a principal in the second degree. It consisted in being present at the time and place, and in doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.' Black's Dict. p. 56, citing 4 Blackstone, 34. An abettor is one who gives 'aid and comfort,' or who either commands, advises, instigates, or encourages another to commit a crime--a person who, by being present, by words or conduct, assists or incites another to commit the criminal act (Black's Dict. p. 6); or one 'who so far participates in the commission of the offense as to be present for the purpose of assisting, if necessary; and in such case he is liable as a principal.' 1 McLain, Cr. Law, § 199."

But mere presence, and no more, is not sufficient to make one an aider and abettor. "For one, who is present and sees that a felony is about being committed," though he may do nothing to prevent it, "does not thereby participate in the felony committed. Every person may, upon such an occasion, interfere to prevent, if he can, the perpetration of so high a crime; but he is not bound to do so at the peril, otherwise, of partaking of the guilt. It is necessary, in order to have that effect, that he should do or say something, showing his consent to the felonious purpose and contributing to its execution, as an aider and abettor." Ruffin, C.J., in State v. Hildreth, 31 N.C. 440, 51 Am. Dec. 364.

To like effect is the language of Chief Justice Smith of the Supreme Court of Mississippi in the recent case of Crawford v. State, 97 So. 534:

"In order for one to aid and abet the commission of a crime, he must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime. Mere presence, even with the intention of assisting in the commission of a crime cannot be said to have incited, encouraged, or aided the perpetrator thereof, unless the intention to assist was in some way communicated to him. The law does not punish intent which is without influence on an act."

Again, in Burrell v. State, 18 Tex. 732, Wheeler, J., quoting from Roscoe, Cr. Ev. 213, says:

"Although a man be present whilst a felony is committed, if he take no part in it, and do not act in concert with those who committed it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon."

See, also, Whart. Am. Cr. L., 6364; Whart. L. Homicide, 157.

The following are the defendant's main exceptions and assignments of error:

(1) At the close of the state's evidence, the defendant's motion for judgment as of nonsuit was overruled. Then the solicitor, as the court was about to take a recess for the night, in open court, and in the presence of the jury, addressed the court and prayed the defendant into custody. The defendant was under a bond of $1,000, which had been ordered given the previous week of the court, and under order of the court the bond was conditioned upon the appearance of the defendant each day during the term and not to depart without leave. In the presence of the jury, the presiding judge ordered the defendant into the custody of the sheriff. No question was raised by the solicitor as to the sufficiency of the sureties on the bond. The court stated, in the hearing of the jury, that putting the defendant in custody did not mean at all that the court thought he was guilty. To both the prayer of the solicitor and the order of the court, in the presence of the jury, the defendant excepted.

(2) In the course of his honor's charge to the jury, he said:

"The law used to be if a man had connection with a girl under 10, it was

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