State v. Bindyke , 25 N.C. App. 273 ( 1975 )

212 S.E.2d 666 (1975) 25 N.C. App. 273

STATE of North Carolina
v.
Donald Paul BINDYKE.

No. 7515SC60.

Court of Appeals of North Carolina.

April 2, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. C. Diederich Heidgerd, Raleigh, for the State.

Harris & McEntire by Mitchell M. McEntire, Graham, and Loflin, Anderson & Loflin by Thomas F. Loflin III, Durham, for defendant appellant.

ARNOLD, Judge.

Defendant first contends that his motions for nonsuit should have been granted with respect to each of the charges against him. Viewing the evidence in the light most favorable to the State, we find it ample to support convictions on all three counts. See State v. Horton, 275 N.C. 651, 170 S.E.2d 466, cert. denied 398 U.S. 959, 90 S. Ct. 2175, 26 L. Ed. 2d 545, rehearing denied 400 U.S. 857, 91 S. Ct. 25, 27 L. Ed. 2d 97 (1970); State v. DeGraffenreidt, 17 N.C. App. 550, 195 S.E.2d 84, cert. denied 283 N.C. 394, 196 S.E.2d 276 (1973). The jury could reasonably conclude that there was an agreement between defendant and Montgomery to burn the bushes and fences. Burning involves the use of an "incendiary device" as defined by G.S. § 14-50.1 thus making the conspiracy a felony under G.S. § 14-50(b). The jury could also find that defendant and Moon agreed to fire-bomb the mayor's car and that Moon threw a Molotov cocktail at the car. As a co-conspirator, defendant was vicariously liable for the acts of Moon in furtherance of the conspiracy. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955); State v. Brooks, 228 N.C. 68, 44 S.E.2d 482 (1947). Finally, the evidence clearly supports the conclusion that defendant not only instigated the burning of Laughlin's lawn but provided the gasoline and created a diversion while others carried out the plan. Defendant's motions for nonsuit were properly overruled.

Defendant next contends that the court expressed an opinion in certain portions of its recapitulation of the evidence. This contention is without merit. Nothing in the record indicates that defendant brought his objections to the attention of the court. See State v. Shutt, 279 N.C. 689, 185 S.E.2d 206, cert. denied 406 U.S. 928, 92 S. Ct. 1805, 32 L. Ed. 2d 130 (1972). Moreover, we do not see how these statements contain an expression of opinion or convey prejudicial suggestions to the jury.

Defendant further contends that the court erred in failing to include willfulness in its definition of attempt and in failing to charge that in order to aid and abet one must be actually or constructively present during the commission of the crime. While the court in its definition may not have used the word "willfully" it expressed that concept by use of the phrase "acted maliciously" which clearly imports willfulness. If defendant conspired with Moon, he was vicariously liable for Moon's attempt to carry out the conspiracy, and the court so instructed. See State v. Kelly, supra; State v. Brooks, supra. Moreover, the evidence showed that defendant aided in the burning of Laughlin's lawn not by his presence but by his absence, thereby creating a diversion.

Finally, defendant contends that the court erred in allowing the alternate juror to go into the jury room with the other jurors. Although the alternate juror was not discharged, as required by G.S. § 9-18, when the jury retired, the record shows that the court corrected its mistake after only three or four minutes had elapsed. Unlike the case of State v. Alston, 21 N.C. App. 544, 204 S.E.2d 860 (1974), the alternate did not participate in the deliberation and verdict of the other twelve. His brief visit to the jury room was not prejudicial.

In defendant's trial, and in the judgment appealed from, we find

No error.

BROCK, C. J., and PARKER, J., concur.