State v. Small

• Decision Date: 02 December 1980
• Docket Number: No. 101,101
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Lenard SMALL.

Page 128

272 S.E.2d 128

301 N.C. 407

STATE of North Carolina v. James Lenard SMALL.

No. 101.

Supreme Court of North Carolina.

Dec. 2, 1980.

Rufus L. Edmisten, Atty. Gen. by Henry T. Rosser, Asst. Atty. Gen., Raleigh, for the State.

Bobby W. Rogers and Linwood T. Peoples, Henderson, for defendant-appellant.

EXUM, Justice.

The state's evidence tends to show that defendant hired another to murder defendant's estranged wife and that she was murdered by the one so hired. Defendant has been convicted of the murder and sentenced to death. The most important question, therefore, raised by defendant's appeal is whether one who is an accessory before the fact to a felony within the meaning of G.S. 14-5 ¹ may be convicted and punished as a principal perpetrator, once the crime is committed, on the theory that he participated in a conspiracy to commit the offense charged. We hold that he may not.

Defendant's conviction for first degree murder must therefore be set aside. The jury, in effect, has found him guilty of being an accessory before the fact to the murder. We find no other prejudicial error in the trial. We remand the case for entry of a sentence of life imprisonment, the sentence prescribed in G.S. 14-6 for one who is an accessory before the fact to murder.

Defendant and codefendant Paul Lowery were convicted of the first degree murder of defendant's wife Evelyn Small. The state's evidence tended to show that defendant had experienced marital difficulties which led to separation from his wife in September, 1977. A deed of separation was drawn which provided that defendant was to convey to his wife his interest in the couple's residence and his automobile free of all encumbrances and debts, to make all payments on the mortgage on the residence, and to provide child support payments amounting to $200.00 per month.

Earl Locklear, a friend of defendant, testified for the state that defendant had talked with him on several occasions about killing Mrs. Small. According to Locklear's testimony, defendant"needed to get his wife killed because the divorce papers was laying uptown ready to be signed by him. He said if he didn't get his wife killed before he signed the divorce papers, that his wife's mother or father, one would get the house and he said nobody wasn't getting the house." Locklear testified that defendant had asked him to help Paul Lowery murder the deceased in exchange for $4,000.00. Locklear refused and told defendant he wanted no part of the scheme.

The state's chief witness Vincent Johnson testified that defendant had initially approached him in September 1978 with a similar offer. Johnson first refused to cooperate but eventually agreed to perform the deed with Paul Lowery. Several attempts were made by Johnson and Lowery thereafter to kill the deceased but in each case the attempts were abandoned. Finally, on the evening of 14 November 1978, the pair gained entrance to Mrs. Small's house with a key that defendant had supplied them. They went through the house until they found Mrs. Small's bedroom. According to Johnson, Lowery then tried to smother Mrs. Small and finally succeeded in strangling her. Johnson and Lowery then left the scene and went to see defendant.

Defendant took the stand in his own behalf and denied any involvement whatsoever in the killing of his wife.

In his charge to the jury relating to the indictment against defendant of first degree murder, Judge Smith submitted as possible verdicts: Guilty of first degree murder, guilty of second degree murder, guilty of accessory before the fact to murder, guilty of voluntary manslaughter, and not guilty. In his final mandate, he instructed the jury in pertinent part:

"So, I charge that if you should find from the evidence, beyond a reasonable doubt, that on the 14th day of November, 1978, either Paul Lowery or Vincent Johnson intentionally strangled or smothered Evelyn Small, thereby proximately causing Evelyn Small's death, to kill her, and that the act was done with malice, with premeditation and deliberation, and that the person who strangled or smothered Evelyn Small had previously agreed with James Small to murder Evelyn Small, and at the time of the agreement, James Small and the person with whom he made the agreement intended that it be carried out, and that the agreement had not been terminated, and that the strangling or smothering was done in the furtherance of the agreement, then it would be your duty to return a verdict of first degree murder, as alleged in the Bill of Indictment, as to James L. Small." (Emphasis supplied.)

After Judge Smith instructed on the other possible verdicts, the jury retired and later returned with verdicts of guilty of first degree murder as to both defendant and codefendant Paul Lowery. Based upon the jury's recommendations subsequent to the sentencing hearing required by G.S. 15A-2000, the court sentenced defendant to death. From this judgment he appeals.

I

Defendant argues that since there was no evidence adduced at trial that he was actually or constructively present during the killing of his wife, he was criminally liable at most as an accessory before the fact to her murder. Since G.S. 14-6 provides for the punishment of life imprisonment for an accessory before the fact to murder, ² defendant contends that the sentence of death imposed upon him cannot stand. We agree.

This case was prosecuted on the theory that defendant, having conspired with Lowery and Johnson to commit murder, thereby became liable as a principal to the crime of murder once the object of the illegal agreement was attained. That portion of the judge's final mandate quoted above clearly directed the jury to find defendant guilty of first degree murder if they were convinced beyond a reasonable doubt that the deceased was intentionally killed with malice and premeditation in furtherance of the conspiracy in which defendant participated. The jury's verdict and the judgment subsequently imposed by the trial court clearly indicate that defendant, as a conspirator, is now held liable as a principal to the substantive offense which was the object of the conspiracy but which was committed in his absence by his coconspirators. The question presented, then, is whether a conspirator may be held substantively liable for the acts of his coconspirators without reference to our traditional common law principles governing parties to a crime. We answer in the negative.

Our law governing felonies continues to maintain common law distinctions between principals and accessories. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977). A principal is one who is present at and participates in the commission of the crime charged. He who actually perpetrates the crime either by his own hand or through an innocent agent, or who acts in concert with the principal perpetrator, is a principal in the first degree. Any other person who is actually or constructively present at the place and time of the crime and who aids, abets, assists, or advises in its commission, is a principal in the second degree. ³ Principals in the first degree and those in the second degree are equally guilty of the offense committed and may be punished with equal vigor. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970); State v. Powell, 168 N.C. 134, 83 S.E. 310 (1914); State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972); 22 C.J.S. Criminal Law §§ 83, 85 (1961).

An accessory before the fact is one who is absent from the scene when the crime was committed but who participated in the planning or contemplation of the crime in such a way as to "counsel, procure, or command" the principal(s) to commit it. G.S. 14-5; State v. Benton, supra. Thus, the primary distinction between a principal in the second degree and an accessory before the fact is that the latter was not actually or constructively present when the crime was in fact committed. Id.; State v. Powell, supra; see also LaFave and Scott, Criminal Law § 63 at p. 498 (1972); 1 Wharton, Criminal Law § 263 at pp. 350-351 (12th ed. 1932); 4 W. Blackstone, Commentaries *36.

At common law principals in the first degree, principals in the second degree, and accessories before the fact were all guilty of the same felony; they were all parties to the same crime. J. Stephen, A Digest of the Criminal Law 21 (9th ed. 1950); 1 M. Hale, Pleas of the Crown

Page 626

"This merely gave recognition to the legal theory that one is considered to have done what he has caused to be done." R. Perkins, The Act of One Conspirator, 26 Hastings L.J. 337, 349 (1974). There were nevertheless important procedural differences in the prosecution of principals and accessories before the fact, one of which was that accessories before the fact must have been indicted as such in order for a conviction to stand. See, e. g., State v. Green, 119 N.C. 899, 26 S.E. 112 (1896); State v. Dewer, 65 N.C. 572 (1871). Virtually all states have by now avoided such procedural limitations by legislative reform. See Model Penal Code § 2.04, Appendix (Tent.Draft No. 1, 1953) and the statutes cited therein. In this state, the procedural problems stemming from a variance between the indictment and proof were, until recently, sufficiently answered both by case law and statutory authority to the effect that the charge of accessory before the fact was 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 principle that the crime of accessory before the fact is not "a lesser included offense of the principal felony." Under this statute one indicted for the principal felony may not be convicted on that indictment as an accessory before the fact. 1979 N.C. Sess. Laws, c....