81 N.C. App. 469 | N.C. Ct. App. | 1986
The defendant was convicted of first degree murder, G.S. 14-17, accessory before the fact of first degree murder, G.S. 14-5, and accessory after the fact of first degree murder, G.S. 14-7; robbery with a dangerous weapon, G.S. 14-87, and accessory after the fact of armed robbery, G.S. 14-5; felonious breaking or entering, G.S. 14-54, felonious larceny, G.S. 14-72, accessory before the fact of felonious breaking or entering and larceny, G.S. 14-5, and accessory after the fact of felonious breaking or entering and larceny, G.S. 14-5; and common law conspiracy to commit breaking or entering and larceny. All the charges concern or arose out of the burglarizing of a doctor’s office in Waynesville in 1978 during the course of which one of defendant’s three confederates shot, killed and robbed a security guard who entered the office while the larceny was in progress. Though all the convictions cannot stand for the reasons stated below, the insufficiency of evidence is not one of them; for the State’s evidence, which includes the testimony of one of her accomplices, tends to establish all of the essential elements of each of the crimes charged.
Nevertheless, defendant maintains that the State’s evidence fails to establish her guilt of armed robbery, breaking and entering, larceny and murder largely because it shows that she was not physically present when these offenses were committed, but was waiting outside of the burglarized office in a getaway car, “watching for the law.” But to be guilty of these offenses under the circumstances of this case she did not have to be physically present in the office when they were committed; for she was tried on the approved theory that she acted in concert with the direct perpetrators by staying outside the building and rendering aid as their lookout, thereby being constructively present at all times involved. State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983); State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). This theory is supported by the State’s evidence, which shows not only that she served as lookout for the other felons, but that she helped plan
While at it we also overrule the assignment contending that her conviction and punishment for both breaking or entering with the intention to commit larceny therein under G.S. 14-54 and larceny under G.S. 14-72 violates the constitutional ban against double jeopardy. This contention flies in the face of several holdings by this Court, and was made, as defendant frankly concedes, in the hope that during the interim our Supreme Court would overrule one of them. But shortly before this case was decided that Court held, as this Court had been holding all along, that breaking or entering with the intention to commit larceny under G.S. 14-54 and larceny following a break-in under G.S. 14-72 are separate offenses for which punishment can be imposed without violating the constitutional restriction against double jeopardy. State v. Edmondson, 316 N.C. 187, 340 S.E. 2d 110 (1986).
But the defendant’s fall back position —that if the felony convictions as a principal stand the convictions as accessories to those same crimes must fall — is rightly maintained. For in the law of crimes it is fundamental that principals and accessories are two different, mutually exclusive things and that one cannot be both an accessory to and a principal in the same crime. A principal is one who either alone or in concert with others commits or accomplishes a forbidden criminal act or acts, State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980); while an accessory is one who either before the fact counsels, encourages, instigates or procures another to commit a felony — State v. Sauls, 291 N.C. 253, 230 S.E. 2d 390 (1976), cert. denied, 431 U.S. 916, 53 L.Ed. 2d 226, 97 S.Ct. 2178 (1977) —or after a felony is committed knowingly renders assistance to the felon. State v. Potter, 221 N.C. 153, 19 S.E. 2d 257 (1942). Since one cannot aid, counsel, instigate or encourage oneself and doing so could not be a crime in any event, it inherently follows that one participating as a principal in the commission of a felony cannot also be an accessory to the same felony, either before or after the fact. State v. McIntosh, 260 N.C. 749, 133 S.E.
Judgment on the armed robbery conviction is also arrested, but for another reason, as defendant correctly maintains. Her conviction of first degree murder is not based on evidence of design or premeditation, but on evidence that the homicide occurred while the felony of robbery from the person was being committed. G.S. 14-17. Thus, proof of this underlying felony was an essential and indispensable element of the murder charge against defendant and as such cannot be the basis for punishment beyond that imposed for the murder of which it was a part. State v. White, 291 N.C. 118, 229 S.E. 2d 152 (1976); State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972).
Having ruled on twelve of the seventeen assignments of error defendant brought forward we overrule her five remaining assignments without discussion. In our opinion the errors assigned — failing to specifically instruct on the prior inconsistent statements made by the accomplice who turned State’s evidence; permitting the prosecutor to read the Attorney General’s grant of immunity to that witness; allowing the prosecutor to cross-examine defendant as to her sincerity as a Christian, whieh she
We add for possible clarification that since none of the judgments include a sentence of death or life imprisonment the appeal is properly in this Court, G.S. 7A-27(b); and that neither party has questioned the validity of any sentence imposed.
No. 79CRS711, first degree murder — No error.
No. 84CRS1774, robbery with a firearm — Judgment arrested.
No. 84CRS1775, breaking or entering; larceny — No error,
No. 84CRS2022, accessory after the fact of murder — Judgment arrested.
No. 84CRS2023, accessory after the fact of robbery with a firearm — Judgment arrested.
No. 84CRS2024, accessory after the fact of breaking or entering and larceny — Judgment arrested.
No. 84CRS2026, accessory before the fact of breaking or entering and larceny — Judgment arrested.
No. 84CRS2031, conspiracy to commit breaking or entering and larceny — No error.