State v. JonesState v. Jones
- Reporters:
- , ,
- Before:
- Winborne
Lead Opinion
The indictment under which defendant is charged is framed in accord with the provisions of G.S. 15-144.
This fоrm of bill of indictment includes the charge of murder committed in the perpetration of a robbery, without a specific allegation or count to that effect. See S. v. Smith, 223 N.C. 457, 27 S.E. 2d 114.
The evidence offered upon trial of instant case tends to show that the homicide here involved was committed in the perpetration of robbery. And in stating the contentions of defendant the trial court told the jury, among other things, that “the defendant further argues and contends that he is not guilty of anything more than being an accessory to the crime of robbery, and, in fairness to him, that is all he is answerable tо and all he is guilty of in this case.” And in this respect the defendant requested the court tо declare the law as to accessory before the fact of murder, аnd as to accessory after the fact of murder, and also as to accessory before the fact of robbery, and as to accessory after the fact of robbery. The record fails to show that the court complied with this requеst.
“Upon the trial of any indictment the prisoner may be convicted of the crimе charged therein or a less degree of the same crime * * * .” G.S. 15-170. The crime of accessory before the fact is included in the charge of the principal crime. S. v. Bryson, 173 N.C. 803; S. v. Simons, 179 N.C. 700. Not so, accessory after the fact. In the instant case Jones tеstified that he had assisted one Gibson in procuring a pistol for the avowed .purрose of committing a robbery, and furnished his car for the use of Gibson, Thomas and Bailey in perpetrating the robbery, that he had an idea where they, were going, and thаt he waited for them until they returned. Where murder was committed in perpetration оf the robbery, Jones’ evidence is sufficient, taken as a whole, to support а verdict against him for counselling and procuring the commission of the felony, that is, of accessory before the fact to murder. People v. Peranio, 225 Mich. 125, 195 N.W. 670. The court ‘should have charged the jury on this phase of the evidence, explained the legal meaning of accessory before the fact to murder, and *453instructed the jury that it might return such verdict as to the defendant Jones.
In this connection the statute, G.S. 1-180, requires that the judge shall declare and explain the law arising on the evidence given in the case. This is a substantial right of litigants. Failure to observe it is error for which the injured party is entitled to а new trial. Such is the applicable principle in the instant case. So, let thеre be a
New trial.
Dissenting Opinion
dissenting. Whether a person, when indicted and tried for murder, may be found guilty as аn accessory before the fact to the crime of murder, remains in doubt. S. v. Dewer, 65 N.C. 572, and S. v. Green, 119 N.C. 899, 26 S.E. 112, clеarly say, “No.” Under rather unusual factual situations, the decisions in Dewer and Green were overruled оr the authority thereof somewhat impaired in S. v. Bryson, 173 N.C. 803, 92 S.E. 698, and in S. v. Simons, 179 N.C. 700, 103 S.E. 5. If and when an appropriate factual situation is presented, I think this Court should reconsider and clarify this subject.
G.S. 14-5 defines an accessory before the fact as a person who counsels, procures or commands another person to commit a felony. Here, according to the State’s evidence, the defendant, in person, committed the robbery and murder. As I read the record, the defendant did not testify that he counseled, procured or commanded the robbery or murder; and the defendant’s testimony is all the testimony tending to show he was not present at the time and place of the commission of the robbery-murder. Hence, whatever view is taken as to the legal question discussed in the preceding paragraph, I do not think the evidence in this case warranted an instruction as to defendant’s guilt as an accessory befоre the fact.
PARKER, J., joins in this dissenting opinion.
Dissenting Opinion
dissenting. Analysis of the evidence convinces me the question of accessory in any degree, either to murder or to robbery, does not arise uрon this record. And regardless of contrary intimations in some of our cases, I am unable to agree that accessory is a lesser degree of the crime of murder. I vote no error.