Before pleading to the bill of indictment, defendant filed a motion alleging that he was arrested and placed in jail on 3 January 1961, no warrant was ever issued, no preliminary hearing was held, and he was thereby denied due process of law. He requested that all proceedings be stayed and abated until a preliminary hearing or cоroner’s inquest was had. The motion was overruled.
The bill of indictment was returned by the grand jury at the January term, 1961. Counsel was appointed for defendant 8 February 1961. When a persоn is arrested without a warrant, the arresting officer shall inform such person of the charge against him, and shall immediately, or “as soon as may be,” take him before a magistrate and, on proper proof, a warrant shall be issued; an officer failing to comply with these requirements is subject to penalties. G.S. 15-45 and G.S. 15-47. A preliminary hearing may be held unless waived by defendant. G.S. 15-85 and G.S. 15-87. But none of these statutes prescribes mandatory procedures affecting the validity of a trial. A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction. “We have no statute requring a preliminary hearing, nor does the State Constitution require it. It was proper to try the petitioner upon a bill of indictment without a preliminary hearing.”
State v. Hackney,
*414 Defendant assigns as error the denial of his motion for nonsuit.
The State’s evidence, in summary, is as follows: The deceased, Sgt. Paul Weingardner, and Billy Parrish, together with two other soldiers, left Fort Bragg on 1 January 1961 in Weingardner’s automobile and went to New Bern and to the home of one McDaniel. Weingаrdner remained there while the others took the car and visited several places including Holland’s Drive-In. Defendant had joined them on their rounds. While they were at Holland’s, Weingardner rode up in a taxi and accused Parrish of stealing his car. Abusive language passed between Parrish and Weingardner. Weingardner took his car keys and tried tо drive but was too drunk. Parrish drove the car. There were five persons in the car including Weingardner and defendant. They visited another place, obtained liquor, and returnеd to Holland’s. Later Parrish and defendant left in the car to take Weingardner to the bus station to put him on a bus for Fort Bragg. About 20 minutes later Parrish and defendant returned, stating they hаd put Weingard-ner on a bus. Later in the evening defendant said that Weingardner was in his (defendant’s) car. On 4 January 1961 the body of Wein-gardner was found in a creek or canal at the City dump. A pathologist performed an autopsy, and testified: “The cause of death was drowning. . . . There was no evidence of trauma on the body. . . . the ethal alcohol content of the blood was 4.0 milligrams per milliliter. . . . A person with this much alcohol content could have been unconscious or could have been in what might be called a helpless condition. . . . death has been reported due to acute alcoholism in a number of cases; . . . the range of alcoholic content in thе blood in these cases usually is somewhere from 5.5 to anywhere to 7.5. ... I found water and fluid in the trachea and lungs. . . . When a person drowns, he does get water in his lungs. . . . The level of the alcohol found in the blood is not enough to kill this man.” Parrish testified at the trial: Defendant drove the car from Holland’s and he (Parrish) was lying in the back seat. When the car stopped he saw defendant and Weingardner in front of the car. Defendant had Weingardner “by the chest, by the clothes,” and shoved him in the ditch. Parrish looked in the ditch and saw Weingаrdner lying face down in the water. Defendant called and Parrish got in the car and they drove off.
This evidence is sufficient to take the case to the jury. The inferencе is permissible that defendant intentionally shoved Weingardner face down into the water while he was in a drunken and helpless condition, and left him there, and as a result he drowned.
In the charge the court instructed the jury that the State contended the defendant was guilty by reason of aiding and abetting even if he should be found not guilty as principal in thе first degree. The *415 court then gave full and correct instructions as to the law relating to aiding and abetting in the commission of crime. And finally, the court charged: “. . . if you find from all thе evidence and beyond a reasonable doubt that the defendant unlawfully committed an intentional assault and battery upon Sgt. Weingardner ... or if you find beyond a reasonable doubt that the defendant was present and aided and abetted another person who committed an assault and battery upon Sgt. Weingardner . . . and if you further find that such assault and battery was the proximate and efficient cause of the drowning and death of Sgt. Weingardner, you would return a verdict of guilty of manslaughter.” This instruction is tantamount to a declaration by the court that the evidence is sufficient as a matter of law to support a verdict of guilty on the ground that defendant aided and abetted another.
Officer Laughinghouse testified that defendant made the following statement when interrogated by him: They went to the City dump. Parrish asked defendant to hit Weingardner. Defendant rеfused. Parrish opened the door and pulled Weingardner out of the car. Defendant told Parrish, “Man, you shouldn’t hit him, lay him over on the side of the grass.” He told Parrish not to hit Weingardner. But' Parrish threw deceased in the ditch. Defendant did nothing to stop Parrish, looked at deceased lying in the ditch but did not attempt to pull him out.
The evidence does not warrant a verdict of guilty on the ground of aiding and abetting. “A person aids when, being present at the time and place, he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages another to commit a crime.”
State v. Holland,
Applying the foregoing rules to the evidence, we find no basis for conviction of defendant as an aider and abettor. He was either guilty as the perpetrator or not guilty at all. He was present, it is true. It
*416
may be that he was a friend of Parrish. But he refused to strike deceased when requested by Parrish and protested against the assault made by Parrish. He made his feelings and intеntions clear to the perpetrator. It is true that he did not physically intervene and did not pull deceased from the water.
.
. one who is present and sees that a felony is about to be committed, though he may do nothing to prevent it, does not thereby participate in the felony committed. Every person may, upon such an occasion, interfere to prevent, if he can, the perpetration of so high a crime; but he is not bound to do so at the peril, otherwise, of partaking of thе guilt. It is necessary, in order to have that effect, that he should do or say something showing his consent to the felonious purpose and contributing to its execution, as an aider and abettor.”
State v. Hart,
Under the challenged instruction, it is possible that the jury’s verdict was grounded upon the theory that defendant was guilty as aider and abettor.
Other matters assigned as error may not recur when the case is tried again.
New trial.