State v. Sauls, No. 7518SC1018

• Docket Nº: No. 7518SC1018
• Citation: 29 N.C.App. 457, 224 S.E.2d 702
• Case Date: May 19, 1976
• Court: Court of Appeal of North Carolina (US)

Page 702

224 S.E.2d 702 29 N.C.App. 457 STATE of North Carolina
v.
Sears William SAULS. No. 7518SC1018. Court of Appeals of North Carolina. May 19, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

William C. Ray, Greensboro, for defendant-appellant.

CLARK, Judge.

The crime of accessory before the fact to the crime charged in an original indictment is a lesser included offense. State v. Simons, 179 N.C. 700, 103 S.E. 5 (1920); Richardson v. Ross, 310 F.Supp. 134 (E.D.N.C.1970). The State having elected to proceed on the charges of accessory before the fact to the principal charges in the indictment, the trial court properly submitted to the jury these lesser offenses.

G.S. 14--5 provides in part as follows: 'If any person shall Counsel, procure, or Command any other person to commit any felony

Page 704

. . . the person . . . shall be guilty of a felony . . ..' (Emphasis added.)

The crime of accessory before the fact is a common law offense. In this State the necessary elements of the crime are: (1) that the defendant counseled, procured, or commanded the principal to commit the offense; (2) that he was not present when the offense was committed; and (3) that the principal [29 N.C.App. 459] committed the crime. State v. Bass, 255 N.C. 42, 120 S.E.2d 580 (1961).

A defendant may be tried and convicted as a principal in the first degree as the actual perpetrator of the offense, or as a principal in the second degree as an aider or abetter of the perpetrator, in which case he must be actually or constructively present. State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Buie, 26 N.C.App. 151, 215 S.E.2d 401 (1975). If not present either actually or constructively, he may be tried and convicted of accessory before the fact to the principal charge, which is a lesser offense thereof. 'Thus, ordinarily, the only distinction between a principal and an accessory before the fact is that the latter was not present when the crime was actually committed.' State v. Benton, 276 N.C. 641, 653, 174 S.E.2d 793, 801 (1970). However, an examination of the decisions leads to the conclusion that presence at the scene of the crime and little else is sufficient to constitute 'aiding and abetting', I.e., under some circumstances mere presence plus friendship with the perpetrator. But for a defendant, not actually or constructively present at the scene, to be criminally responsible for the acts of others as an accessory before the fact, it must be shown that he counseled, or procured, or commanded the others to perpetrate the crime. An accessory before the fact has been described as one who furnishes the means to carry on the crime, whose acts bring about the crime through the agency of or in connection with the perpetrators, who is a confederate, who instigates a crime. See 22 C.J.S. Criminal Law § 90.

The evidence for the State in the present case tends to show that Edward George Busby and Ronald McVey, in the car sales business at Portsmouth, Virginia, purchased some printed checks and identification cards from a 'Mr. Frazier'. The check in question apparently had been stolen from the law office of Hoyle, Hoyle and Boone, without the knowledge of any member of the firm. Busby had previously known for over a year the defendant Sauls, who was employed as a used car salesman in Greensboro. They went to see defendant and told him they were there to get a North Carolina driver's license in a fictitious name to be used in cashing...