3 N.C. App. 323 | N.C. Ct. App. | 1968
Each defendant presents as his first assignment of error the denial by the court of their respective motions for nonsuit made at the close of the State’s evidence and again at the close of all of the evidence. Their argument is that there is not substantial evidence of each of the elements of the offense of malicious maiming, with or without malice aforethought. And Ernest Beasley, Sr., argues further that the State failed to offer evidence that he maimed or aided and abetted in maiming.
(1) The accused must act with malice aforethought.
(2) The act must be done on purpose and unlawfully.
(3) The act must be done with intent to maim or disfigure a privy member of the person assaulted.
(4) There must be permanent injury to the privy member of the person assaulted. See State v. Bass, 255 N.C. 42, 120 S.E. 2d 580; State v. Malpass, 226 N.C. 403, 38 S.E. 2d 156; State v. Skidmore, 87 N.C. 509; State v. Ormond, 18 N.C. 119; State v. Crawford, 13 N.C. 425; State v. Evans, 2 N.C. 281.
The offense of maiming a privy member condemned by G.S. 14-29 is a lesser included offense of G.S. 14-28, and for a conviction under G.S. 14-29 proof of malice aforethought, or of a preconceived intention to commit the maiming of the privy member, is not necessary. State v. Girkin, 23 N.C. 121.
In passing upon a motion for nonsuit the court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Only the evidence favorable to the State will be considered, and defendant’s evidence in conflict with that of the State will not be considered. 2 Strong, N. C. Index 2d, Criminal Law, § 104, p. 648. When the evidence favorable to the State is viewed in accordance with this principle it will justify a finding: That Ernest Beasley, Sr., and his nineteen year old son Stanley Lee parked their car and waited in a position to intercept Norman Steven Broome, a fifteen year old elementary school student, on his way home from school. That they did this because of some earlier conflict between Broome and one of the younger Beasley boys over a baseball glove. That when Broome started home Stanley Lee Beasley intercepted him and viciously and brutally whipped him with his fists, jerked and threw him about on the ground, held him while he jabbed his knee to his groin injuring his testicle, tried to “stomp him” while he was on the ground, pulled him up from the ground and hit him more with his fists while he was against the car, and continued to hit him until he could run away. That during this time Ernest Beasley, Sr., stood between the gathering crowd and the altercation to prevent any interference and when Steven Broome’s younger brother Robert tried to come to his aid, Ernest Beasley, Sr.,
It is not necessary in this case for us to determine whether the evidence is sufficient to support a finding that defendants acted with malice aforethought, or premeditated design; the motion for nonsuit was specifically addressed to a dismissal of the “felony charge,” and the offense condemned by G.S. 14-29, a lesser included offense of G.S. 14-28, is also a felony. Therefore, maiming a privy member without malice aforethought being a lesser included offense of maiming a privy member with malice aforethought, if the evidence was sufficient to support a conviction under G.S. 14-29 of maiming a privy member without malice aforethought the trial judge was correct in overruling defendants’ motions. 2 Strong, N. C. Index 2d, Criminal Law, § 105, p. 652. Therefore we omit discussion of whether the first element listed above (acting with malice aforethought) is supported by the evidence.
That the acts of the defendants were on purpose and were unlawful (the second element listed above) is clearly supported by the evidence. That the acts of the defendants were with intent to maim or disfigure a privy member (the third element listed above) is prima facie to be inferred from an act which does in fact disfigure, unless the presumption be repelled by evidence to the contrary. State v. Girkin, 23 N.C. 121; State v. Crawford, 13 N.C. 425; State v. Evans, 2 N.C. 281. That there was permanent injury to the privy member (the fourth element listed above) is clearly supported by the testimony of Dr. Jenkins that the testicle had a large stellate laceration which was obviously from trauma, and necessitated the surgical removal of the testicle. There was no error in the refusal to nonsuit the felony charge against Stanley Lee Beasley.
“It is thoroughly established law in this State that without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty.” State v. Keller, 268 N.C. 522, 151 S.E. 2d 56. “A person aids or abets in the commission of a crime within the meaning of this rule when he shares in the criminal intent of the actual perpetrator, and renders assistance or encouragement to him in the perpetration of the crime.” State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169.
The evidence in this case clearly supports a finding that Ernest Beasley, Sr., was present at the time Stanley Lee assaulted Norman Steven Broome; that he gave active encouragement to Stanley Lee by his failure to try to stop the altercation and by his
We have carefully examined the remaining assignments of error and find them to be without merit.
No error.
