State v. Wade , 11 N.C. App. 169 ( 1971 )

GRAHAM, Judge.

Both defendants assign as error the denial of their motions for directed verdicts of not guilty made at the close of the State’s evidence and renewed at the close of all the evidence.

It is elementary that upon a motion for judgment as of nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679; State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169; State v. Thompson, 256 N.C. 593, 124 S.E. 2d 728; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580. Furthermore, all of the evidence actually admitted, whether competent or incompetent, including that offered by the defendants, if any, which is favorable to the State, must be taken into account and considered by the court in ruling upon the motion. State v. Cutler, supra; State v. Walker, 266 N.C. 269, 145 S.E. 2d 833; State v. Virgil, 263 N.C. 73, 138 S.E. 2d 777.

Defendant Wade was identified as one of two men pulling on one of the copper bars and cutting it. In order to get to the copper it was necessary that they enter onto the owner’s property which was enclosed by a barbed wire fence. Wade admitted that he assisted in loading the copper bars which were hidden in some woods. Within a relatively short time thereafter he was found with the stolen property in a car being driven by him. This constituted plenary evidence to be passed upon by the jury on the question of his guilt of larceny.

The evidence with respect to Bennett is not as compelling. Nevertheless, when considered in the light most favorable to the State, we are of the opinion that it was also sufficient to be passed upon by the jury. Bennett admitted being in the company of Wade during the early morning hours of 12 July 1970 when the theft occurred. He was in the Pontiac automobile with Wade when it was stopped and the stolen property discovered therein. This was a short time after the theft had occurred and a short distance from where the property had been loaded into the Pontiac. Compare State v. McCloud, 276 N.C. 518, 173 S.E. 2d 753; State v. Miller, 271 N.C. 646, 157 S.E. 2d 335; State v. Godwin, 269 N.C. 263, 152 S.E. 2d 152; State v. Nichols, 268 N.C. 152, 150 S.E. 2d 21; State v. Stroud and State v. Mason and State v. Willis, 10 N.C. App. 30, 177 S.E. 2d 912. Furthermore," witnesses testified that the copper had carbon dust about it and Bennett had carbon dust on his clothing. Bennett offered testimony tending to explain his presence near the scene of the theft and exculpate him from responsibility. However, the credibility of this testimony was for the jury.

Defendant Bennett also assigns as error the court’s instruction that he could be guilty as a principal in the second degree. A person who is actually or constructively present at the place of a crime either aiding, abetting, assisting or advising in its commission, or is present for that purpose is a principal in the second degree. State v. Benton, 276 N.C. 641, 174 S.E. 2d 793. The evidence would support a finding that the defendant was either a principal in the first degree, or that he rendered aid to the actual perpetrator of the offense, though he never directly assisted in removing the copper bars from the property of the owner. If Bennett were a principal in the first or second degree he would be equally guilty. State v. Benton, supra; State v. Allison, 200 N.C. 190, 156 S.E. 547. This assignment of error is overruled.

No error.

Judges Campbell and Britt concur.