State v. . Donnell
164 S.E. 352
N.C.
1932
Check Treatment
Stagy, 0. J.

The record recites there was evidence tending to show that during the evening of 25 November, 1931, Nord Donnell and Leroy Lee, riding in the latter’s ear, went to the store of R. B. Andrews, a merchant at Sedalia, Guilford County, and one or the other shot and killed the said Andrews. It is admitted that both Donnell and Lee were present at the time of the homicide, and each testified the other did the shooting. Donnell said the murder was the result of a hold-up scheme. He confessed his part in the crime and has not appealed. S. v. White-hurst, ante, 631. Lee testified there was no conspiracy or intention on his part to rob the deceased, and that Donnell alone was responsible for the killing. They both left immediately after the shooting, in Lee’s car, and were arrested a day or two later. As we understand the record, though its preparation is somewhat unsatisfactory, a robbery was being perpetrated or attempted at the time of the shooting.

*784 Tbe prisoner’s first exception is to tbe refusal of tbe court to grant bis motion for a severance or separate trial. It was tbe rule at common law, wbicb still obtains witb us, tbat, wben two or more persons are indicted jointly, a motion for severance may be made on tbe face of tbe bill (S. v. Deaton, 92 N. C., 788), but tbe granting or refusing of tbe motion is a matter wbicb rests in tbe sound discretion of tbe trial court. S. v. Southerland, 178 N. C., 676, 100 S. E., 187; S. v. Holder, 153 N. C., 606, 69 S. E., 66; S. v. Carrawan, 142 N. C., 575, 54 S. E., 1002; S. v. Barrett, 142 N. C., 565, 54 S. E., 856; S. v. Smith, 24 N. C., 402. No abuse of discretion appears on tbe present record. Tbe defendants were partners in crime and they bave been tried together as bis Honor thought was but meet. Note, 70 A. L. R., 1171; 16 C. J., 786. Tbe exception is not sustained.

Tbe-following excerpt from tbe charge forms tbe basis of tbe prisoner’s next exception or second assignment of error:

“Now there is no conspiracy expressly set out in tbe bill, and it is not necessary tbat it should bave been alleged in tbe bill, but if tbe State has satisfied you beyond a reasonable doubt from tbe evidence tbat tbe two defendants Donnell and Lee, prior to tbe time of tbe alleged killing of R. B. Andrew, entered into a conspiracy to rob him, and pursuant to tbat conspiracy so entered into, and while in an attempt to carry out tbe unlawful purpose, to wit, tbe robbery of Mr. Andrew, one of them shot and killed him, tbe court instructs you, gentlemen of tbe jury, tbat both defendants would under those circumstances be guilty of murder in tbe first degree.”

This instruction is free from reversible error. S. v. Holder, supra. Without regard to tbe existence or absence of a conspiracy, it is a settled principle of law, apparently applicable to tbe facts of tbe instant case, tbat where two persons aid and abet each other in tbe commission of a crime, both being present, both are principals and equally guilty. S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Hart, 186 N. C., 582, 120 S. E., 345; S. v. Jarrell, 141 N. C., 722, 53 S. E., 127.

Tbe third exception, and tbe one on wbicb tbe defendant places bis greatest reliance, is tbe failure of tbe court to submit to tbe jury tbe issue of murder in tbe second degree, under the principle tbat every view of tbe case, arising on tbe evidence, must be submitted to tbe jury. S. v. Newsome, 195 N. C., 552, 143 S. E., 187. Tbat while it is conceded an unlawful killing witb a deadly weapon raises a presumption of malice, sufficient to' warrant a verdict of murder in the second degree, nothing else appearing, still it raisés no greater presumption; and tbe defendant says tbe jury should bave been told tbat unless tbe prosecution bad fully satisfied them of a premeditated murder, executed in a *785 cool state of the blood, a verdict of murder in the second degree would be in order. S. v. Benson, 183 N. C., 795, 111 S. E., 869. The record is not altogether clear, but as we understand it, a robbery was being perpetrated or attempted at the time of the killing. This made the homicide murder in the first degree. S. v. Logan, 161 N. C., 235, 76 S. E., 1. It is provided by 0. S., 4200 that a murder committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree. S. v. Sterling, 200 N. C., 18, 156 S. E., 96.

Speaking to the question in S. v. Spivey, 151 N. C., 676, 65 S. E., 995, Manning, J., delivering the opinion of the Court, said: “Where the evidence tends to prove that a murder was done, and that it was done by means of poison, lying in wait, imprisonment, starving, torture, or which has been committed in perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, and where there is no evidence and where no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a. verdict of ‘guilty of murder in the first degree/ if they are satisfied beyond a reasonable doubt, or of ‘not guilty.’' If, however, there is any evidence or if any inference can be fairly deduced therefrom, tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to the jury. It becomes the duty of the trial judge to determine, in the first instance, if there is any evidence or if any inference can be fairly . deduced therefrom, tending to prove one of the lower grades of murder.” See, also, S. v. Miller, 197 N. C., 445, 149 S. E., 590.

It is observed that the defendants are charged in the indictment with the murder of one R. B. “Andrews,” while the judgment recites they were convicted of murdering one R. B. “Andrew” as charged in the bill of indictment. The names are patently idem sonans, and the slight difference, evidently a typographical error either in the one or the other, is not regarded as material. S. v. Drakeford, 162 N. C., 667, 78 S. E., 308; S. v. Collins, 115 N. C., 716, 20 S. E., 452; S. v. Lane, 80 N. C., 407.

The remaining exceptions are equally untenable, and the ease is free from reversible error. The verdict and judgment will be upheld.

No error.