State v. Wiggins, No. 7214SC749

• Docket Nº: No. 7214SC749
• Citation: 16 N.C.App. 527, 192 S.E.2d 680
• Case Date: November 22, 1972
• Court: Court of Appeal of North Carolina (US)

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.

[16 N.C.App. 529] 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

Page 682

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,...