199 S.E.2d 699 | N.C. Ct. App. | 1973
STATE of North Carolina
v.
George LYLES, Jr.
Court of Appeals of North Carolina.
Atty. Gen. Robert B. Morgan, by Asst. Atty. Gen. Edward L. Eatman, Jr., Raleigh, for the State.
Asst. Public Defender Neill Fleishman, Fayetteville, for defendant-appellant.
Certiorari Denied and Appeal Dismissed by Supreme Court December 4, 1973.
*701 MORRIS, Judge.
Appellant's assignments of error can be separated into two groups. Assignments of error Nos. 1, 3 and 4 depend upon appellant's contention that he was not present at the scene of the crime. In assignment of error No. 2 appellant contends that the trial judge commented on the evidence in contravention of G.S. § 1-180.
The first group of assignments of error may be summarized as depending entirely upon the theory that defendant's conduct in driving the "getaway car" does not amount to his being present at the scene of the robbery. If defendant were not present, he contends, he would be entitled to a judgment as of nonsuit and a directed verdict, for the evidence produced would be insufficient to go to the jury on the offense as charged. Likewise, were he not present, the court's instruction to the jury concerning aiding and abetting would be prejudicial, for an aider or abettor must be present. Appellant further urges that he was entitled to an instruction on the lesser included offense of accessory before the fact inasmuch as the distinction between a principalincluding an aider and abettor and an accessory before the fact is that the former is present at the time of the offense whereas the latter is not.
As we have stated, these assignments of error depend entirely upon the contention of defendant that he was not present at the time of the armed robbery. Thus, a favorable determination of these assignments would require a holding on our part that the driver of a getaway car who had driven the robbers to within a block and a half of the premises robbedand was apprehended while parked 100 feet behind the premises with his headlights off and his motor runningis not present at the scene of the robbery. We do not so hold.
As this Court stated in State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972), the distinction between a principal and an accessory before the factabolished in some jurisdictionsremains in force in North Carolina with regard to general felonies, including armed robbery. The distinction has been set forth in State v. Benton, 276 N.C. 641, 653, 174 S.E.2d 793, 800 (1970).
"`A principal in the first degree is the person who actually perpetrates the deed either by his own hand or through an innocent agent.' (Emphasis added.) Any other who is actually or constructively present at the place of the crime either aiding, abetting, assisting or advising in its commission, or is present for that purpose, is a principal in the second degree. (Citations omitted.) In our law, however, `the distinction between principals in the first and second degrees is a distinction without a difference.' Both are principals and equally guilty. State v. Allison, 200 N.C. 190, 194, 156 S.E. 547, 549; accord, State v. Gaines, 260 N.C. 228, 132 S.E.2d 485; State v. Peeden, 253 N.C. 562, 117 S.E.2d 398. An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. State v. Benton, 275 N.C. 378, 167 S.E.2d 775; State v. Bass, 255 N.C. 42, 120 S.E.2d 580; Miller, supra, § 76; 22 C.J.S. Criminal Law § 90 (1961).
Thus, ordinarily, the only distinction between a principal and an accessory before the fact is that the latter was not present when the crime was actually committed."
In order to determine whether a defendant is present, the court must determine whether "he is near enough to render assistance if need be and to encourage the actual perpetration of the felony." State v. Wiggins, supra, 16 N.C.App. at 531, 192 S.E.2d at 683.
The general principal has been stated that
*702 "`One who procures or commands another to commit a felony, accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinity for the purpose of aiding and abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon completion of the offense, is a principal in the second degree and equally liable with the actual perpetrator. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Sellers, 266 N.C. 734, 147 S.E.2d 225.' State v. Price, 280 N.C. 154, 158, 184 S.E.2d 866, 869." Id., at 530-531, 192 S.E.2d at 683. (Emphasis added.)
The facts of the case before us are clearly sufficient to bring it within the general rule established by Benton and Wiggins, supra. The driver of a getaway car is present at the scene of the crime, and he is a principal rather than an accessory before the fact.
Therefore, there is no error in the denial of the motions for judgment as of nonsuit and for directed verdict, nor is there error in the court's instructing the jury on aiding and abetting.
Likewise, there was no error in the failure of the trial court to instruct the jury on the lesser included offense of accessory before the fact. It is a well-established principle that the court is not required to submit the question of guilt on a lesser included offense where all the evidence tends to establish the greater charge, and there is no evidence of the lesser charge. State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Wilson, 14 N.C.App. 256, 188 S.E.2d 45 (1972).
As his final assignment of error, appellant urges that the trial court erred in its charge to the jury in that it failed to state the evidence necessary to explain the applicable law except in the contentions of the State. It is appellant's position that this amounts to a comment on the evidence in contravention of G.S. § 1-180. We do not agree. It is not error for the trial judge to instruct the jury in terms of the State's contentions where the record discloses evidence from which inferences drawn by the court could legitimately, fairly and logically be drawn by the jury. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970).
No error.
CAMPBELL and HEDRICK, JJ., concur.