State v. Powell, (No. 266.)

• Docket Nº: (No. 266.)
• Citation: 83 S.E. 310, 168 N.C. 134
• Case Date: November 05, 1914
• Court: United States State Supreme Court of North Carolina

83 S.E. 310
168 N.C. 134

STATE.
v.
POWELL et al.

(No. 266.)

Supreme Court of North Carolina.

Nov. 5, 1914.

1. Homicide (§ 254*)—Evidence —Weight and Sufficiency.

On the trial of L. and J. for homicide, evidence held sufficient to support J.'s conviction for murder in the second degree, though it appeared that, after he assaulted deceased with the encouragement of L. and was assaulted by deceased, deceased followed L. from the room and was then killed by him.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.*]

2. Homicide (§ 30*)—Parties to Offense.

Where a person kills another under circumstances making him guilty of murder, any person aiding, encouraging, and abetting the killing is guilty of the same degree of crime.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*]

3. Homicide (§ 30*)—Parties to Offense— "Principal in First Degree"—"Principal in Second Degree" — "Accessory before the Fact"—"Accessory after the Fact."

The parties to a homicide are "principals in the first degree, " being those whose unlawful acts or omissions cause the death of the victim without the intervention of any responsible agent; "principals in the second degree" being those who are actually or constructively present at the scene of the crime, aiding and abetting therein, but not directly causing the death; "accessories before the fact" being those who have conspired with the actual perpetrator to commit the homicide, or some other unlawful act that would naturally result in homicide, or who have procured, instigated, encouraged, or advised him to commit it, but who were neither actually nor constructively present when it was committed; and "accessories after the fact" beiug those who, after the commission of the homicide, knowingly aid the escape of a party thereto.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 43-51; Dec. Dig. § 30.*

For other definitions, see Words and Phrases, First and Second Series, Accessory after the Fact; Accessory before the Fact; Principal.]

4. Homicide (§ 30*) — Parties to the Offense—"Aiding and Abetting."

A person may aid and abet a homicide by rendering help to the perpetrator in the prelimi nary stages of the homicide or in its commission, by encouraging him by acts, words, or gestures, by joining in a conspiracy to commit a homicide, "by hiring, instigating, inciting, or advising him to commit it, by being privy to the homicide, countenancing it by being present at its commission or by aiding and abetting in some unlawful act that would naturally result in a homicide, provided the homicide actually results therefrom, but mere presence, without giving aid or encouragement at or before the homicide, and without a prior conspiracy, though with knowledge that the crime is to be committed, and even with approval of its commission, if such approval is not communicated to the perpetrator, does not constitute "aiding and abetting."

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*

For other definitions, see Words and Phrases, First and Second Series, Aid and Abet]

5. Homicide (§ 30*)—Parties to the Offense —Aiding and Abetting.

To render a person who advises or incites the commission of a homicide guilty of aiding and abetting the homicide, his advice or encouragement must contribute to the deed.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*]

6. Homicide (§ 30*)—Parties to the Offense —Aiding and Abetting.

To render one guilty of aiding and abetting a homicide, he must either act with criminal intent or share in the intent of the principal, but one who aids and abets with full knowledge of the situation adopts the criminal intent of his principal to the extent of his knowledge or of the natural and reasonable consequences of the act encouraged by him.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*]

7. Homicide (§ 30*)—Parties to Offense.

All who join in a common design to kill, whether in a sudden emergency or pursuant to a conspiracy, are liable for the acts of each of their accomplices in furtherance thereof, whether specifically contemplated or not, and though they did not know where or how the homicide was to be committed, and'though the conspirator actually committing the homicide cannot be identified.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*]

8. Homicide (§ 30*)—Parties to Offense.

There may be liability for a homicide committed in the execution of a common design, though the plan did not involve the taking of life if it proximately results therefrom and is a natural and probable consequence of the doing of an unlawful act.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*]

9. Homicide (§ 30*)—Parties to Offense.

If a common design does not contemplate the commission of a homicide and is of such a nature that a homicide will not be a natural or probable result, participation in the design is not of itself sufficient to make one liable for a homicide committed concurrently with the execution of the common plan by the independent act of a confederate growing out of his malice, or other cause having no connection with the common object, unless the accomplice was present aiding and abetting the homicide itself.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.*]

10. Criminal Law (§ 825*)—Instructions-Necessity of Requests.

Where the court's charge failed to state all the law of the case, accused should have called

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[83 S.E. 311]

attention to the omission by a request for special instructions.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.*]

11. Homicide (§ 171*) — Evidence — Res geste.

Where on the trial of L. and J. for homicide, it appeared that J. threw a dish and a bottle at deceased and was then attacked by deceased with a chair; that L., who had been encouraging J. and had an open knife in his hand, left the room followed by deceased; that J. attempted to follow, but was prevented by other persons; and that immediately thereafter L. killed deceased—evidence as to all of such matters was properly admitted, as it was all one continuous transaction; each event being inseparable from the others.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 351-358; Dec. Dig. § 171.*]

12. Criminal Law (§ 833*)—Appeal—Invited Error.

Where after the court had given its charge in writing, accused orally requested an instruction that his failure to testify should not be taken against him, he could not complain that the court gave such instruction orally, as he could not take advantage of his own wrong; _ and if he wanted the instruction given in writing he should have asked for it in apt time.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2015; Dec. Dig. § 833.*]

Appeal from Superior Court, Pender County; Cooke, Judge.

Louis Powell and Junius Pridgen were convicted of murder in the second degree, and defendant Pridgen appeals. Affirmed.

The defendant and Louis Powell were jointly indicted for the murder of Charles Brown, and were convicted of murder in the second degree. Charles Brown was killed at the house of Oliver Williams, who is the husband of Mary E. Williams. She testified for the state as follows:

"On the night of February 28, 1914, there was a quarrel in my house between the prisoners and the deceased. Pridgen and Powell were in the kitchen, and the deceased was in an adjoining room; Powell had a knife open in his hand; Pridgen threw a soup dish and an empty bottle at the deceased, and the latter ran into the kitchen with a chair and struck Pridgen on the head; Powell left the kitchen and the deceased followed him, and shortly thereafter, within five minutes, the deceased was lying on the floor in the house dead from a cut in the left side."

Dave Pridgen, a witness for the state, testified that he was at the house, and that Pridgen went into the kitchen. Powell followed him with a knife in his hand and said to Pridgen that he would not take it, and "damned if I would take it and you don't have to." This witness further testified as to what then took place, as follows:

"At that time I looked around and saw Charley in the other room coming toward the kitchen, and Junius Pridgen threw an empty bottle at Charley, but missed him, and the bottle broke to pieces against the side of the house. Charley said something and picked up a chair and came into the kitchen and hit Junius and ran out. Louis got out first, and Charley was right behind him."

"Question by the Court: Did 'I understand you to say they were running? Which was running in front and which was running after? Louis was ahead, and Charley was right behind him. Louis had his knife in his hand When defendant started out, I grabbed his coat tail, and he did not go out. I stayed in the kitchen a minute or two to see about Junius' head, and then went out to see where Charley and Louis were, and when I went into the south room, I stumped my feet against Charley on the floor, but stepped across his body. When I called Charley, Louis spoke, saying, 'There is nothing ails him, but he is drunk, '' and I reached down to lift him up and found his clothes bloody. And I said, 'Somebody bring me a light, ' and Mary came with a light, and I said, 'Somebody has. killed him.' I said 'Louis, you have killed Charley, ' and Louis Powell didn't say anything. I told everybody to stay in the house and sent Louis Pridgen after Mr. George Huggins, to tell him what the trouble was. I do not know anything about any fight or fuss except that part of the affair when Charley started towards Junius Pridgen, after Junius said, 'Don't a damned man touch me.'"

And he further testified:

"I went out of the kitchen after Charley and Louis because I had heard Louis...