State v. Cassell , 24 N.C. App. 717 ( 1975 )

212 S.E.2d 208 (1975) 24 N.C. App. 717

STATE of North Carolina
v.
Larry Eugene CASSELL.

No. 7418SC878.

Court of Appeals of North Carolina.

March 5, 1975. Certiorari Denied and Appeal Dismissed May 6, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Walter E. Ricks III and Associate Atty. Robert W. Kaylor, Raleigh, for the State.

Smith, Carrington, Patterson, Follin & Curtis by Kenneth M. Carrington and Michael K. Curtis, Greensboro, for defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court May 6, 1975.

HEDRICK, Judge.

Defendant assigns as error the failure of the trial judge to grant his motion for judgment as of nonsuit.

In the case at bar, defendant was prosecuted on the theory that he aided and abetted Jimmy Dale Hundley in the commission of second degree murder. An aider and abettor is one who advises, procures, encourages, or assists another in the commission of a crime. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973).

"`A person aids when, being present at the time and place he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages another to commit a crime.' State v. Holland, 234 N.C. 354, 358, 67 S.E.2d 272, 274; State v. Johnson, 220 N.C. 773, 776, 18 S.E.2d 358. `. . . Mere presence, even with the intention of assisting in the commission of a crime, cannot be said to have incited, encouraged or aided the perpetration thereof, unless the intention to assist was in some way communicated to him (the perpetrator) . . ..' State v. Hoffman, 199 N.C. 328, 333, 154 S.E. 314, 316. However, there is an exception. `". . . when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement", and in contemplation of law this was aiding and abetting.' State v. Holland, supra." State v. Hargett, 255 N.C. 412, 415, 121 S.E.2d 589, 592 (1961).

Circumstances to be considered in determining whether a defendant aided and abetted the actual perpetrator of a crime include the following: (1) the relationship of the defendant to the actual perpetrator; (2) the motive tempting the defendant to assist in the crime; (3) presence of the defendant at the time and place of the crime; and (4) conduct of the defendant both before and after commission of the crime. State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5 (1952).

In the instant case, the State offered evidence tending to show (1) that the defendant and Hundley were friends; (2) that the defendant was angry with the deceased; (3) that the defendant and Hundley obtained two shotguns from the defendant's car; (4) that the defendant threatened to "blow the door down" when the bartender prevented them from entering the Flamingo Bar and Grill with the shotguns; (5) that the defendant threatened to kill the deceased if he followed them; (6) that when he and Jimmy Dale Hundley left the Flamingo, Hundley put his shotgun in the front seat of the car; (7) that the defendant was driving the car from which Hundley shot the deceased; (8) that Hundley fired the shotgun from out of the defendant's window; and (9) that the defendant left the scene of the crime. We conclude that when taken in the light most favorable to the State, there was sufficient evidence to allow the jury to find that the defendant aided and abetted Hundley in the commission of second degree murder.

Defendant next contends that the trial court erred in placing him on trial for second degree murder because Jimmy Dale Hundley, the actual perpetrator of the crime, had previously pleaded guilty to voluntary manslaughter.

One who aids and abets in the commission of a felony is a principal in the second degree and is equally liable with the actual perpetrator of the crime. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971).

"It is not necessary that the person who actually perpetrated the deed be tried and convicted before the one who aided and abetted in the crime can be tried and convicted. State v. Jarrell, 141 N.C. 722, 53 S.E. 127. Indeed, this Court has held that where one principal has been acquitted at a former trial it was no bar to the trial of the others who were indicted as principals. State v. Whitt, 113 N.C. 716, 18 S.E. 715. See Annot., 24 A.L.R. 603; 21 Am.Jur.2d Criminal Law § 101. Obviously there must be proof that the offense has in fact been committed before one may be convicted of aiding and abetting in its commission. Cf. State v. Gainey, 273 N.C. 620, 160 S.E.2d 685; State v. Spruill, 214 N.C. 123, 198 S.E. 611." State v. Beach, supra, 283 N.C. at 269, 196 S.E.2d at 220.

Although the State allowed Hundley to plead guilty to voluntary manslaughter prior to defendant's trial, Hundley's guilty plea did not, as contended by the defendant, determine that the crime of second degree murder had not been committed. This assignment of error is, therefore, overruled.

Based on exceptions duly noted in the record, the defendant contends the court erred in instructing the jury that it could convict the defendant if it found beyond a reasonable doubt that the defendant was present when Hundley committed the crime and that the defendant knowingly encouraged and aided Jimmy Hundley by telling the deceased if he followed them they would kill him or by driving the car in such a way as to permit the shooting.

Defendant argues that where the State relies on words of encouragement as a basis for the jury's finding that the defendant aided and abetted in the perpetration of the crime, the State must prove not only that the words were uttered but that they were actually communicated to the perpetrator. Ordinarily, where the State relies on words of encouragement or incitement to show that the defendant aided and abetted the actual perpetrator of the crime, the State must also prove that the words were communicated to the perpetrator, 22 C.J.S. Criminal Law § 88(2); but in the present case, the State was not relying solely on the defendant's statement to the deceased that if he followed them he would be killed. This statement was merely one incident in a series of events linking the defendant and Hundley to the commission of the crime.

The evidence discloses that Hundley had been present all evening and left the Flamingo with the defendant and that each man got a shotgun and returned to the bar and were together when the defendant made the statement to the deceased. Under the circumstances, it was not necessary for the State to prove that the statement made by the defendant to the deceased was communicated to Hundley. Nor do we find any error in the court's instructing the jury that it could convict the defendant if it found beyond a reasonable doubt that the defendant was present when Hundley committed the crime and aided and abetted him by driving the automobile in such a manner as to permit the shooting. Driving the automobile in such a manner as to permit Hundley to fire the fatal shot was simply the final incident in the series of events linking the defendant and Hundley to the crime. When the charge is considered contextually as a whole, we think it is fair, complete and free from prejudicial error.

By assignment of error number six, defendant next contends that the trial court committed prejudicial error in allowing Dr. Phillips, after the defendant had stipulated that Garner died as a result of a gunshot wound inflicted by Hundley, to testify as to the injuries sustained by Garner and the treatment he gave for these injuries and in allowing into evidence an X-ray photograph showing shotgun pellets in the deceased's head. Citing State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969) and State v. Wall, 243 N.C. 238, 90 S.E.2d 383 (1955), defendant argues that this evidence was rendered irrelevant by the stipulation and had no probative value with respect to any issue to be determined by the jury and that its admission was prejudicial because it served only to inflame the jury and incite prejudice against the defendant. Relevant evidence will not be excluded simply because it may tend to prejudice the jury or excite its sympathy; however, if the only effect of the evidence is to excite prejudice or sympathy, its admission may be ground for a new trial. State v. Wall, supra.

Under the circumstances of this case, we cannot say that the evidence challenged by these exceptions was irrelevant and that its only effect or purpose was to inflame the jury against the defendant. Here, the State not only had the burden of proving that Garner died as a result of gunshot wounds inflicted by Hundley, it had to introduce evidence from which the jury could find beyond a reasonable doubt that the defendant aided and abetted Hundley in the commission of the crime; and, in order to do so, the State had to offer evidence that the defendant drove the automobile in such a manner as to permit Hundley to fire the fatal shot. The nature and extent of the wounds, and their precise location on Garner's body, would be of considerable aid to the jury in determining the relative position of the two automobiles when the fatal shot was fired. This in turn would assist the jury in deciding whether the defendant aided and abetted Hundley by driving the automobile in such a manner as to permit him to reach across in front of the defendant with his shotgun and fire with deadly accuracy into the automobile operated by Garner. While the stipulation relieved the State of the burden of proving the cause of Garner's death, it did not, in our opinion, render irrelevant any evidence which tended to shed any light on the defendant's connection with that death.

In any event, it is our opinion that the defendant has failed to show that he was prejudiced by the admission of the physician's testimony, since Officer Shelton testified without objection immediately before Dr. Phillips in considerable detail as to the injuries sustained by Garner. This assignment of error is not sustained.

Defendant has other assignments of error which we have carefully considered and find to be without merit. We find that the defendant had a fair trial free from prejudicial error.

No error.

MORRIS and PARKER, JJ., concur.