No. 7520SC672 | N.C. Ct. App. | Dec 17, 1975
By his first assignment of error, defendant contends the court erred in consolidating the cases against him and those
By his second assignment of error, defendant contends the court erred in denying his motions for nonsuit. This assignment is without merit. Evidence presented by the State is summarized in pertinent part as follows:
On 6 December 1974, Mrs. Morrison lived in the Town of Carthage and worked for Lyle Turner. Around 5:00 p.m. on that date, Mrs. Tyson, accompanied by her 14-year-old son, carried Mrs. Morrison in Mrs. Tyson’s automobile to the Turner home on Highway 27, in or near the Town of Carthage, to turn on the lights. After Mrs. Morrison unlocked the door and entered the house, she was grabbed by Santos. She got loose and ran out the door at which time Santos said, “If you run, I’ll stab you.” With a butcher knife in his hand, Santos followed Mrs. Morrison to the car where she first saw Johnson who told Santos to stab her if she screamed. Mrs. Tyson’s son had gotten out of the car and was running down the road to a store. Johnson had taken Mrs. Tyson into the house. Santos and Johnson escorted Mrs. Morrison back into the house and soon thereafter forced both ladies to go with them to the car. As they were going out the door, Santos or Johnson called to defendant and he entered the yard from a side door of the house. Defendant was holding a knife by his side at the time.
When Santos, Johnson and the ladies returned to the car, defendant was sitting in the back seat and helped pull Mrs. Morrison into the car. With Mrs. Morrison sitting in the back between Santos and defendant, both of whom had knives, and with Johnson, who also had a knife, sitting in the front, Mrs. Tyson was required to drive the car up Highway 27 to Highway 22 and on toward Putnam. Johnson then ordered her to turn the car around and go back to Carthage for purpose of getting gas. On returning to Carthage, some 30 to 40 minutes after leaving the house, police intercepted the Tyson automobile and defendants were arrested. One of the officers saw defendant, before he got out of the car, push a knife with his foot under the front seat.
Defendant’s testimony is summarized in pertinent part as follows: He is 21 and a resident of Montgomery, Alabama. On
Johnson testified and on cross-examination stated that he was from North Salem, New York, and had never resided in Moore County; that he, defendant and another person came to North Carolina from Florida; that he had been convicted of burglary, armed robbery and escape in the State of New York.
We hold that the evidence was more than sufficient to withstand the motions for nonsuit.
By his third assignment of error, defendant contends the court erred in permitting the district attorney to cross-examine him about being in, and escaping from, jail prior to the offenses in question. Defendant argues that the effect of the cross-examination was to interrogate him regarding unrelated offenses for which he had been indicted but not convicted. The assignment has no merit. Defendant was not cross-examined about any indictment but was properly questioned about prior reprehensible conduct. See State v. Gainey, 280 N.C. 366" court="N.C." date_filed="1972-01-28" href="https://app.midpage.ai/document/state-v-gainey-1275043?utm_source=webapp" opinion_id="1275043">280 N.C. 366, 185 S.E. 2d 874 (1972) ; State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971).
By his assignments 5, 6, 7 and 8, defendant contends the court erred in giving certain instructions to the jury and in failing to give other instructions. We deem it necessary to discuss only the questions raised by assignments 6 and 7, that the court erred in not instructing the jury with respect to aiding and abetting.
While defendant did not request instructions on aiding and abetting, the trial court is required by G.S. 1-180 “ ... to de
“Now, further, the Court instructs you that, for a person to be guilty of a crime, it is not necessary that he, himself, do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit the crime of Kidnapping, each of them is held responsible for the acts of the others done in the commission of the crime of kidnapping.”
Defendant argues that “ . . . the jury should have been charged that mere presence at the scene of the crime even with the knowledge of a criminal act or for that matter silent approval of a criminal act is not sufficient to establish aiding and abetting on the part of the defendant who is merely present.”
We think the court erred in failing to give instructions on aiding and abetting. However, we think the error was harmless beyond a reasonable doubt. The only evidence that would require the instructions was the testimony of defendant to the effect that he was with Johnson and Santos and rode in the Tyson car because he was afraid not to; that he was scared of Johnson. Pitted against his testimony was the State’s evidence summarized above including the showing that when defendant came out of the Turner house he was holding a knife by his side, that he helped pull Mrs. Morrison into the backseat of the automobile, and when the police stopped them, he was seen pushing a knife under the seat; also his testimony on cross-examination that he and Johnson were good friends, they had come to North Carolina from Florida, that he escaped from the Moore County Jail with Johnson, and that he feloniously entered the house next to the Turner house with Johnson and Santos and spent the night. With all of the opportunities defendant had to separate himself from Johnson, it is inconceivable that a jury would disregard all of the evidence against him and conclude that he was a forced participant in the kidnappings.
We have considered the other assignments of error brought forward and argued in defendant’s brief but find them to be without merit.
For the reasons stated, we conclude that defendant received a fair trial free from reversible error.