State v. Sherian

• Decision Date: 07 June 1951
• Docket Number: No. 578,578
• Citation: 65 S.E.2d 331,234 N.C. 30
• Parties: STATE, v. SHERIAN et al.
• Court: North Carolina Supreme Court

Page 331

65 S.E.2d 331

234 N.C. 30

STATE, v. SHERIAN et al.

No. 578

Supreme Court of North Carolina.

June 7, 1951

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

John Kerr, Jr., Warrenton, and Jones & Jones, Rockingham, for defendants.

DENNY, Justice.

The defendants based their defense solely upon their contention that whatever assistance they rendered to James Diggs, after he feloniously assaulted Rex Howell, was done under compulsion and through fear of death or great bodily harm at the hands of Diggs, and not with the intention or for the purpose of enabling him to escape arrest and punishment.

In the charge in chief, the court instructed the jury that 'the crime charged against the defendants * * * consists of the following elements: 1. The felony charged must have been committed; 2. The accused must have known that the felony had been committed by the person received, relieved on assisted; 3. The alleged accessory or accessories must render assistance to the felon.'

Later in the charge the court instructed the jury on the 3rd element of the crime of accessory after the fact, as follows: 'The accessory, which the State contends applies to the cases of these defendants, and each of them, must render assistance to the felon named in the bill of indictment, meaning James Diggs, in this case. Did these defendants, or either of them, render assistance to the felon personally?'

The contentions of the defendants were adequately given and the general principles of law with respect to the crime charged were correctly stated as ordinarily applicable to the crime of accessory after the fact, where the question of the voluntariness or involuntariness of the assistance rendered to the felon is not raised. State v. Williams, 229 N.C. 348, 49 S.E.2d 617; State v. Potter, 221 N.C. 153, 19 S.E.2d 257. But the court did not expressly instruct the jury as to the law applicable to the specific evidence offered by the defendants in support of their defense, in the event it should find the facts to be as testified to by them. G.S. § 1-180; State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53; State v. Herbin, 232 N.C. 318, 59 S.E.2d 635; State v. Sutton, 230 N.C. 244, 52 S.E.2d 921; State v. Fain, 229 N.C. 644, 50 S.E.2d 904. And it is apparent from the request made by the jury, for additional instruction, that it desired to be instructed on this precise question. The request being in the following language: 'We request instruction on the last part. In other words, from the time the shooting took place, from that point under fear or otherwise.'

In response to this request, the court proceeded to give the following instruction: 'The defendants, or either of them, if found beyond a reasonable doubt to have been present at the time the alleged felony was committed, to wit, the assault upon Officer Howell, Rex Howell, received, relieved, comforted, or assisted the person committing such felony, who is alleged to be one James Diggs, or in any manner aided him to escape arrest or punishment, wilfully and...