65 N.C. App. 612 | N.C. Ct. App. | 1983
Defendant has expressly abandoned all the exceptions and assignments of error set forth in the record. Under Appellate Rule 10(a), none of the questions he presents on appeal are properly before this Court. We address the merits of defendant’s appeal in the exercise of our discretion.
Defendant first contends the trial court erred in submitting to the jury the possible verdict of guilty of accessory before the fact to felonious larceny. Defendant argues that he was constructively present at the larceny since he provided the truck for Scott and Henry to use in stealing the boat, and since he helped transport the boat to a buyer after the theft. If defendant was constructively present when the crime was committed, he could have been convicted as a principal but not as an accessory before the fact. State v. Small, 301 N.C. 407, 412-13, 272 S.E. 2d 128, 132 (1980). Constructive presence occurs when the defendant accompanies the actual perpetrator to the vicinity of the crime and stays there with the purpose of aiding the actual perpetrator, if needed, in committing the offense or escaping thereafter. State v. Wiggins, 16 N.C. App. 527, 530-31, 192 S.E. 2d 680, 683 (1972). (Citations omitted.)
In the present case, defendant was miles away from the scene of the crime and in no position to assist Henry and Scott during the theft. Consequently he was not constructively present, and therefore not a principal, when the crime was committed. The trial court properly submitted the accessory before the fact verdict to the jury.
Defendant next contends the trial court erred in submitting felonious possession of stolen goods as a possible verdict. Defendant cites State v. Perry, 305 N.C. 225, 235-36, 287 S.E. 2d 810, 816 (1982), to the effect that G.S. 14-71.1, the statute concerned with possession of stolen goods, was designed to extend society’s protection against theft by allowing prosecution where the State could not prove who committed the larceny and could not prove
Defendant further contends that he should not have been sentenced for both accessory before the fact of larceny and possession of stolen goods. We agree. State v. Perry, supra, at 235-237, concluded that the legislature did not intend that a defendant be punished for both larceny and possession of the same property. The same logic compels us to hold that a defendant may not be punished for both accessory before the fact of larceny and possession. If defendant had accompanied the others when they went to steal the boat, he would have been guilty of larceny as a principal and, under Perry, could not have been punished for both larceny and possession. It would be strange to say that although he took possession of the boat shortly after it was stolen, he could be punished twice merely because he did not accompany the thieves.
We note that G.S. 14-5.2 (effective 1 July 1981) now provides that anyone guilty and punishable as an accessory before the fact under former G.S. 14-5, 14-5.1 and 14-6 is now guilty and punishable as a principal to the crime. Since an accessory before the fact to larceny is now punished as a principal to larceny, and one who is punished as a principal to larceny may not also be punished for possession of the same property, the question we have just addressed is not likely to recur.
The judgments are vacated and the case is remanded for entry of judgment on one of the verdicts and dismissal of the other conviction.
Vacated and remanded.
