State v. Jones

Decision Date12 April 1961
Docket NumberNo. 505,505
Citation254 N.C. 450,119 S.E.2d 213
PartiesSTATE, v. Leroy JONES.
CourtNorth Carolina Supreme Court

T. W. Bruton, Atty. Gen., Glenn L. Hooper, Jr., Asst. Atty. Gen., for the State.

Bryan & Bryan, Dunn, for defendant appellant.

WINBORNE, Chief Justice.

The indictment under which defendant is charged is framed in accord with the provisions of G.S. § 15-144.

This form of bill of indictment includes the charge of murder committed in the perpetration of a robbery, without a specific allegation or count to that effect. See State v. Smith, 223 N.C. 457, 27 S.E.2d 114.

The evidence offered upon trial of instant case tends to show that the homicide here involved was committed in the perpetration of robbery. And in stating the contentions of defendant the trial court told the jury, among other things, that 'the defendant further argues and contends that he is not guilty of anything more than being an accessory to the crime of robbery, and, in fairness to him, that is all he is answerable to and all he is guilty of in this case.' And in this respect the defendant requested the court to declare the law as to accessory before the fact of murder, and as to accessory after the fact of murder, and also as to accessory before the fact of robbery, and as to accessory after the fact of robbery. The record fails to show that the court complied with this request.

'Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or a less degree of the same crime * * *.' G.S. § 15-170. The crime of accessory before the fact is included in the charge of the principal crime. State v. Bryson, 173 N.C. 803, 92 S.E. 698; State v. Simons, 179 N.C. 700, 103 S.E. 5. Not so, accessory after the fact. In the instant case Jones testified that he had assisted one Gibson in procuring a pistol for the avowed purpose of committing a robbery, and furnished his car for the use of Gibson, Thomas and Bailey in perpetrating the robbery, that he had an idea where they were going, and that he waited for them until they returned. Where murder was committed in perpetration of the robbery, Jones' evidence is sufficient, taken as a whole, to support a verdict against him for counselling and procuring the commission of the felony, that is, of accessory before the fact to murder. People v. Peranio, 225 Mich. 125, 195 N.W. 670. The court should have charged the jury on this phase of the evidence, explained the legal meaning of accessory before the fact to murder, and instructed the jury that it might return such verdict as to the defendant Jones.

In this connection the statute, G.S. § 1-180, requires that the judge shall declare and explain the law arising on the evidence given in the case. This is a substantial right of litigants. Failure to observe it is error for which the injured party is entitled to a new trial. Such is the applicable principle in the instant case. So, let there be a

New trial.

BOBBITT, Justice (dissenting).

Whether a person, when indicted and tried for murder, may be found guilty as an accessory before the fact to the crime of murder, remains in doubt. State v. Dewer, 65 N.C. 572, and State v....

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17 cases
  • State v. Branch, 1
    • United States
    • North Carolina Supreme Court
    • December 17, 1975
    ...Our Court has held that the crime of accessory before the fact is included in the charge of the principal crime. State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); State v. Simons, 179 N.C. 700, 103 S.E. 5 (1920); State v. Bryson, 173 N.C. 803, 92 S.E. 698 (1917). Since accessory before t......
  • State v. Small
    • United States
    • North Carolina Supreme Court
    • December 2, 1980
    ...to be deemed included in the charge of the principal crime, see State v. Holmes, 296 N.C. 47, 249 S.E.2d 380 (1978); State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); 41 N.C.L.Rev. 118 (1962). Effective 1 October 1979, however, newly enacted G.S. 14-5.1 reverts to the prior common law pr......
  • State v. Benton
    • United States
    • North Carolina Supreme Court
    • June 12, 1970
    ...Homicide § 28 (1968). See State v. Bryson, 173 N.C. 803, 92 S.E. 698, and the comments thereon in 41 N.C.L.Rev. 118 and State v. Jones, 254 N.C. 450, 119 S.E.2d 213. Actual presence, however, becomes immaterial when a person causes a crime to be committed by an innocent agent, that is, one ......
  • State v. Squire
    • United States
    • North Carolina Supreme Court
    • May 10, 1977
    ...offense within the charge of murder, as to which see the several opinions of our predecessors on this Court in State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961), it is well established that the trial court is under a duty to instruct the jury upon, and to submit for its consideration, a l......
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