The
criminal charge against defendant is set forth in the
following warrant:
"Joseph
A. Perry, being duly sworn, complains and says that at and in
said County, Lumberton Township, on or about the 9th day of
August, 1941, Alonzo Johnson did unlawfully and wilfully aid
and abet in prostitution and assignation contrary to the form
of the statute and against the peace and dignity of the
State. Joseph A. Perry. Sworn to and subscribed before me
this 9th day of August, 1941. Robert Weinstein
Solicitor." Defendant plead "Not
guilty".
Defendant
was tried on the above warrant and convicted in the
Recorder's Court and found guilty. From the sentence
imposed, he appealed to the Superior Court, where he plead
not guilty. He was then tried by a jury and found guilty. The
defendant made several exceptions and assignments of error
and appealed to the Supreme Court. The material ones and
necessary facts will be set forth in the opinion.
Harry
McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton
Asst. Attys. Gen., for the State.
L
J. Britt, T. A. McNeill, and Caswell P. Britt, all of
Lumberton, for defendant.
CLARKSON
Justice.
At the
close of the State's evidence and at the conclusion of
all the evidence, the defendant in the Court below made
motions for judgment of nonsuit. N. C.Code 1939 (Michie) §
4643. The Court overruled these motions and in this we can
see no error.
In
State v. Mann, 219 N.C. 212, 214, 13 S.E.2d 247
248, 132 A.L.R. 1309, is the following: "'In
considering a motion to dismiss the action under the statute,
we are merely to ascertain whether there is any evidence to
sustain the indictment; and in deciding the question we must
not forget that the state is entitled to the most favorable
interpretation of the circumstances and of all inferences
that may fairly be drawn from them. State v.
Carlson, 171 N.C. 818, 89 S.E. 30; State v.
Rountree, 181 N.C. 535, 106 S.E. 669. It is not the
province of this court to weigh the testimony and determine
what the verdict should have been, but only to say whether
there was any evidence for the jury to consider; if there
was, the jury alone could determine its weight. State v.
Cooke, 176 N.C. 731, 97 S.E. 171.' State v. Carr,
196 N.C. 129, 144 S.E. 698, 700."
The
evidence on the part of the State is to the effect that two
soldiers stationed at Fort Bragg, on August 9, arrived at
Lumberton from Fort Bragg about 8 o'clock p.m. About 12
or 1 o'clock they were parked across the street from the
Airport Service Station. Sergeant Joseph A. Perry, one of the
soldiers, testified, in part: "There was a house over
there, I didn't know what house it was, we just turned
around there; we were turning around to come back to
Lumberton. I had never been to that house before. When we
were in front of the house across the road from the airport
station we saw Johnson. This airport station is on the
Charlotte Road. Johnson was in his car. He came around to us
and asked if we were M. P.'s (Military Police) and we
told him No; he said if we wanted some women he would take us
to Dreamland, and we told him we were not interested. He said
'Wait a minute', and he went into a house about 30
feet from where we were turning around and knocked on the
door, and he talked to someone. I couldn't tell whether
it was a man or a woman. He came back out. He said,
'There are some women in there, you can go in there if
you want to; you ought to give me 50¢ for my trouble.'
Neither of us soldiers got out of our car then and went in
the house. About five minutes later John Doyle went in the
house. After Johnson had this conversation with us he went
back to his car. *** I had never seen Johnson before that
night. I don't know where Dreamland Service Station is,
never heard of it. I do not know anything else about
it."
John T. Doyle, the other soldier, testified, in part:
"We went back to that same house Johnson had gone in and
stopped, and I went in the house; there were girls in there;
I only saw one, I guess she was an Indian girl. When I got in
there I talked with her; I went to bed with her and had
sexual intercourse with her; I paid the girl. That was the
same house Johnson had told us we could go in. Perry was in
his car while I was in the house having sexual intercourse
with this girl."
Rebecca Jacobs testified, in part: "Q. State whether or
not you have ever seen Johnson in his taxi carry any men out
to that house? Ans: I saw him sometimes, a few times, couple
of times."
We
think this evidence of Rebecca Jacobs competent to
corroborate Doyle; the probative force was for the jury.
The
defendant denied the charge and proved a good reputation; the
probative force of the evidence was for the jury to decide.
There
were no exceptions to the charge of the Court, it was clear
and able, covering the law applicable to the facts. The Court
charged, in part: "In order for one to aid and abet the
commission of a crime, he must do something that will
indicate, encourage or assist the actual perpetrator in its
commission. Mere presence, even with the intention of
assisting cannot be said to have incited, encouraged or aided
the perpetrator unless the intention to assist was in some
way communicated to him. 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. A person who, by being
present, by word or conduct, incites another to commit a
criminal act or one who so far participates in the commission
of the offense as to be present to the knowledge of the
person actually committing the crime for the purpose of
assisting, if necessary." State v. Hoffman, 199
N.C. 328, 333, 154 S.E. 314.
In 2
C.J., p. 1024, Aider and Abettor is defined as follows:
"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; any
person who is present at the commission of a trespass,
encouraging or exciting the same by words, gestures, looks,
or signs, or who in any way or by any means countenances and
approves the same." 3 C.J.S., Aider and Abettor, p. 505.
State v. Hart, 186 N.C. 582, 120 S.E. 345; State
v. Dail, 191 N.C. 234, 131 S.E. 574; State v.
Tyndall, 192 N.C. 559, 135 S.E. 451, 49 A. L.R. 596;
State v. Baldwin, 193 N.C. 566, 137 S.E. 590.
The
statute, N.C.Code, supra, § 4357, reads: "The term
'prostitution' shall be construed to include the
offering or receiving of the body for sexual intercourse for
hire, and shall also be construed to include the offering or
receiving of the body for indiscriminate sexual intercourse
without hire. The term 'assignation' shall be
construed to include the making of any appointment or
engagement for prostitution or any act in furtherance of such
appointment or engagement."
Section
4358: "It shall be unlawful: *** 7. To engage in
prostitution or assignation, or to aid or abet prostitution
or assignation by any means whatsoever."
The
warrant was drawn in the language of the statute and is
sufficient in law. State v. Stanton, 23 N.C. 424;
State v. Crews, 128 N.C. 581, 38 S.E. 293; State
v. Leeper, 146 N.C. 655, 61 S.E. 585; State v.
Carpenter, 173 N.C. 767, 92 S.E. 373; State v.
Maslin, 195 N.C. 537, 143 S.E. 3.
In
State v. Abbott, 218 N.C. 470, 476, 11 S.E.2d 539,
542, speaking to the subject, it is written: "In State
v. George, 93 N.C. 567, 570, Ashe, J., for the court, said:
'The indictment strictly follows the words of the
statute, and that is laid down in all the authorities as the
true and safe rule. It is true there are some few exceptions,
but we do not think they embrace this case.' State v.
Leeper [supra]; State v. Puckett, 211 N.C. 66, 73, 189 S.E.
183."
"If
the defendants had desired further information, the statute
provides that they can have a bill of particulars. Revisal
1905, § 3244; [N.C.Code, 1939 (Michie), § 4643]. State v.
Pickett, 118 N.C. [1231], 1233, 24 S.E. 350." State v.
Leeper, supra, 146 N.C. at page 661, 61 S.E. at page 578.
In
State v. Puckett, supra [211 N.C. 66, 189 S.E. 187],
we find: "In State v. Wilson, 121 N.C. 650, 655, 28 S.E.
416, 417, it is said: 'Besides, duplicity is ground only
for a motion to quash. Being cured by the verdict, it cannot
be used as ground for
a motion in arrest of judgment. Whart.Cr. P.L. §§ 255,
760.' 16 C.J., p. 1258, § 2791."
The
sufficiency of a warrant for aiding and abetting
prostitution, using the language employed in the warrant in
the instant case, has been decided in the case of State
v. Waggoner, 207 N.C. 306, 176 S.E. 566, and adversely
to the defendant. One of the counts in the warrant on which
the defendant was convicted in that case charged that he
"did aid and abet in prostitution and assignation,
against the statute in such case made and provided, and
against the peace and dignity of the State." This
language is almost identical with that contained in the
warrant in the instant case. There was a motion below to
quash the warrant, which was overruled. The Supreme Court
found no error, and it is stated at page 307 of 207 N.C., at
page 567 of 176 S.E., that: "The warrant was drafted in
accordance with the provisions of C.S. § 4358."
None of
defendant's exceptions and assignments of error can be
sustained, for the reasons given. The General Assembly has
made aiding and abetting in prostitution a crime. The
defendant has had a fair and impartial...
