State v. Wiggins

• Decision Date: 22 November 1972
• Docket Number: No. 7214SC749,7214SC749
• Citation: 16 N.C.App. 527,192 S.E.2d 680
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Clarence Edward WIGGINS.

Page 680

192 S.E.2d 680

16 N.C.App. 527

STATE of North Carolina v. Clarence Edward WIGGINS.

No. 7214SC749.

Court of Appeals of North Carolina.

Nov. 22, 1972.

Atty. Gen., Robert Morgan by Associate Atty. Gen., George W. Boylan for the State.

Nathaniel L. Belcher, Durham, for defendant appellant.

GRAHAM, Judge.

Defendant did not challenge the sufficiency of the evidence in the trial court in the manner prescribed by G.S. § 15--173. He contends on appeal, however, that the evidence is insufficient to support his conviction for the offense of armed robbery. 'The sufficiency of the evidence of the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. § 15--173 in the trial court.' G.S. § 15--173.1. See also State v. Conrad, 275 N.C. 342, 168 S.E.2d 39; State v. Davis, 273 N.C. 349, 160 S.E.2d 75; State v. Robinson, 13 N.C.App. 200, 184 S.E.2d 888; State v. Pitts, 10 N.C.App. 355, 178 S.E.2d 632, cert. denied, 278 N.C. 301, 180 S.E.2d 177.

The State's evidence would support the following findings: On 18 January 1972 Melvin Anderson entered the Sherwin Williams Co., Inc. store in the Northgate Shopping Center in Durham, and with the threatened use of a pistol, removed in excess of $200.00 of the company's money from the presence of one company employee and one customer. The money was subsequently divided among Anderson, defendant, Charles Graham, who drove Anderson to the shopping center, and Amos Andrew Shaw, who accompanied Anderson and Graham there. The robbery was carried out pursuant to an agreement between these four men. Defendant, who had once worked for Sherwin Williams Co., Inc., suggested the robbery. He also pointed the store out to the others, furnished the pistol used by Anderson and arranged for Graham to drive Anderson to the scene for the purpose of the robbery. After having been advised of his constitutional rights, defendant stated to a Durham detective that 'he was the brains behind the robbery.' The evidence shows, however, that defendant was not present at the scene when the robbery took place but was at a house some ten or fifteen blocks away.

No question is raised concerning the sufficiency of the evidence to support defendant's conviction of the conspiracy charge. (Case #72CR1432.) The evidence is obviously sufficient in this respect. 'As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete.' State v. Knotts, 168 N.C. 173, 188, 83 S.E. 972, 979. We are of the opinion, however, that while the evidence points strongly to defendant's guilt as an accessory before the fact to the offense of armed robbery, it does not support his conviction as a principal for that offense.

The distinction between principals and accessories before the fact is set forth in State v. Benton, 276 N.C. 641, 653, 174 S.E.2d 793, 800--801:

"A principal in the first degree is the person who actually perpetrates the deed either by his own hand Or through an innocent agent.' (Emphasis added.) Any other who is actually or constructively present at the place of the crime either aiding, abetting, assisting, or advising in its commission, or is present for that purpose, is a principal in the second degree. Miller, Criminal Law §§ 73, 74, 75 (1934). Accord, State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Jarrell, 141 N.C. 722, 53 S.E. 127. In our law, however, 'the distinction between principals in the first and second degrees is a distinction without a difference.' Both are principals and equally guilty. State v. Allison, 200 N.C. 190, 194, 156 S.E. 547, 549; Accord, State v. Gaines, 260 N.C. 228, 132 S.E.2d 485; State v. Peeden, 253 N.C. 562, 117 S.E.2d 398. An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. State v. Benton, 275 N.C. 378, 167 S.E.2d 775; State v. Bass, 255 N.C. 42, 120 S.E.2d 580; Miller, Supra, § 76; 22 C.J.S Criminal Law § 90 (1961).

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.'

By its express terms, G.S. § 14--87 extends to one who aids or abets in the commission of an armed robbery. "It is well settled that one who is present, aiding and abetting in a crime actually perpetrated by another, is equally guilty with the actual perpetrator.' State v. Garnett, 4 N.C.App. 367, 167 S.E.2d 63.' State v. Berryman, 10 N.C.App. 649, 652, 179 S.E.2d 875, 878. However, presence, either actual or constructive, is indispensible to the position of a principal in the second degree. 'Statements in the decisions that one who advises, counsels, or procures another to commit a crime is an aider or abettor even though not present at the scene when the crime is committed, would seem to be inexact, since one who merely counsels, procures, or commands another to commit a felony is an accessory before the fact under the statute (G.S. 14--5). In the cases containing such statements, the defendants were all present at the time.' 2 Strong, N.C. Index 2d, Criminal Law, § 9, pp. 491--92. See also R. Perkins, Criminal Law, Ch. 6, § 8 (2d ed. 1969); 1 Wharton, Criminal Law and Procedure, § 110 (Anderson 1957), 22 C.J.S., Criminal Law, § 85, p. 250.

In some jurisdictions, by statute, all distinction between a principal and an accessory before the fact has been abolished. State v. Benton, Supra, and authorities cited. The distinction still exists in this State in regard to general felonies. 'If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person so counseling, procuring or commanding shall be guilty of a felony. . . .' G.S. § 14--5. A person convicted as an accessory before the fact to the felony of armed robbery is subject to imprisonment for not more than ten years. G.S. § 14--6.

The evidence here shows that defendant was not actually present during the perpetration of the robbery but was in a house ten to fifteen blocks away. However, the actual distance of a person from the place where a crime is perpetrated is not always material in determining whether the person is constructively present. See for instance, State v. Chastain, 104 N.C. 900, 10 S.E. 519, where defendant was 150 yards from the scene, armed with a rifle which would be fatal at that distance, with intent to use it to back up his brother, the perpetrator, if required. A guard who has been posted to...