State v. Allen , 34 N.C. App. 260 ( 1977 )

BRITT, Judge.

By his first assignment of error, defendant contends the court erred in denying his motion to prohibit the district attorney from questioning him with respect to two murders for which defendant had been charged but never tried, and in allowing the district attorney to question him about those murders. This assignment has no merit.

Defendant testified as a witness in his own behalf. On cross-examination the district attorney questioned him about killing Ollie Ingram and Mackland Little but did not question him about being indicted for the murder of those persons. Defendant concedes that the rule now prevailing in this jurisdiction is that while a defendant may not be cross-examined for purposes of impeachment as to whether he has been indicted or is under indictment for a criminal offense other than that for which he is then on trial, he may be questioned about specific acts of criminal conduct and such cross-examination for purposes of impeachment is not limited to questions concerning convictions of crimes. See State v. Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973); State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971); and State v. Splawn, 23 N.C. App. 14, 208 S.E. 2d 242, cert. denied, 286 N.C. 214, 209 S.E. 2d 318 (1974).

At the same time, defendant argues that the rule should be changed and that the cross-examination of a defendant regarding criminal conduct should be limited to offenses for which he has been indicted and convicted. Argument identical to defendant’s has been rejected by our Supreme Court in State v. Foster, supra, and State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537 (1976). The assignment of error is overruled.

By his second assignment of error, defendant contends the trial court erred in allowing the district attorney, over his objection, to extensively cross-examine him about a prior conviction. This assignment has no merit.

During the course of his cross-examination, defendant was asked if he was not convicted of breaking into and entering Colbert Textiles in High Point in January of 1973. He stated that while he pled guilty to the offense he was in fact not guilty. The court allowed the prosecutor to ask defendant several additional questions about the case and in this we perceive no impropriety. The scope of the cross-examination of a witness rests largely in the discretion of the trial judge, State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972), and the rule that answers given by a witness to questions on cross-examination relating to collateral matters are conclusive does not preclude the examiner from “pressing or sifting the witness” by further cross-examination. 4 Strong’s N.C. Index 3d, Criminal Law § 88.3.

We find no merit in defendant’s fourth assignment of error. This assignment relates to an alleged inaccuracy by the trial court in reviewing the evidence in the charge to the jury. Suffice it to note that there is no indication in the record that the alleged inaccuracy was called to the attention of the court before the jury retired. The law requires that this be done in order to give the trial judge an opportunity to correct any alleged inaccuracy in his review of the evidence. State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970). The assignment is overruled.

Defendant assigns as errors the failure of the trial court to grant his motions (1) for nonsuit as to all charges and (2) for arrest of judgment in all cases. With respect to the felonious assault charge, and judgment rendered therein, we think the assignments have merit. As to the other charges and judgments, we find no merit in the assignments.

Defendant argues that in order to be guilty of a felonious assault the offender must be present at the scene of the assault either actually or constructively; and to be guilty of accessory before the fact, the offender must be absent from the scene. Therefore, he argues, under the indictments and evidence in these cases, he could not be guilty of a felonious assault on West and also be guilty of accessory before the fact to armed robbery or attempted armed robbery. We find this argument persuasive.

“A principal in the first degree in an assault and battery is he who actually commits the assault and battery with his own hand. A principal in the second degree in an assault and battery is one who is actually or constructively present when an assault and battery is committed by another, and who aids or abets such other in its commission.” 1 Strong’s N.C. Index 3d, Assault and Battery § 10.

“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, 276 N.C. 641, 653, 174 S.E. 2d 793, 801 (1970).

In the instant cases, the evidence showed that defendant “procured, counseled, commanded or encouraged” Caldwell and Hayes to commit the attempted armed robbery of West and that he was absent from the scene; and that Caldwell and Hayes committed the felonious assault on West in their attempt to carry out the armed robbery. While the evidence showed that defendant was in his automobile near the store when Caldwell and Hayes entered the store, he was not there when they came out and there was no showing that he remained there after they entered.

We hold that the felonious assault charge against defendant should not have been submitted to the jury and that the trial court should have arrested the judgment on that charge. We also hold that the evidence was sufficient to survive the motions for nonsuit of the conspiracy and accessory before the fact charges and that the judgment in those cases should not have been arrested.

By his sixth assignment of error, defendant contends the court erred in its jury instructions pertaining to accessory before the fact in that the court did not instruct that absence from the scene of the principal crime is an element of the offense. Assuming, arguendo, that this assignment has merit, we do not think defendant was prejudiced by the error.

Defendant relies on the following statement from State v. Bass, 255 N.C. 42, 51, 120 S.E. 2d 580, 587 (1961), quoted with approval in State v. Buie, 26 N.C. App. 151, 153, 215 S.E. 2d 401, 403 (1975):

“There are several elements that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime.” 22 C.J.S., Criminal Law, § 90, p. 269.

While we do not dispute the quoted statement, the absence of defendant from the scene of the principal offense in the instant case was not an issue at trial. Witnesses for the State testified that he was not present and as a witness for himself defendant testified that he was elsewhere at the time of the attempted armed robbery.

“The chief purposes of the charge are clarification of the issues, elimination of extraneous matters, and declaration and application of the law arising upon the evidence.” Chief Justice Stacy in State v. Jackson, 228 N.C. 656, 658, 46 S.E. 2d 858, 859 (1948), citing State v. Matthews, 78 N.C. 523 (1878), and State v. Dunlop, 65 N.C. 288 (1871). “Mere technical error will not entitle defendant to a new trial; it is necessary that error be material and prejudicial and amount to a denial of some substantial right.” 4 Strong’s N.C. Index 3d, Criminal Law § 167, p. 851.

While the trial court might have erred in the omission complained of, we find it inconceivable that the omission, under the evidence in this case, was material and prejudicial. The assignment of error is overruled.

In No. 76CRS20479 (felonious assault case), judgment arrested.

In Nos. 76CRS20480 and 76CRS20481 (conspiracy and accessory before the fact cases), no error.

Chief Judge BROCK and Judge MORRIS concur.