State v. Holland , 234 N.C. 354 ( 1951 )

67 S.E.2d 272 (1951) 234 N.C. 354

STATE
v.
HOLLAND.

No. 291.

Supreme Court of North Carolina.

October 31, 1951.

Kenneth D. Thomas, Hickory, for defendant, appellant.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Robert B. Broughton, member of staff, Raleigh, for the State.

JOHNSON, Justice.

The exceptions brought forward by the defendant test only the sufficiency of the evidence to carry the two consolidated cases to the jury over the defendant's motions for judgment of nonsuit, made in apt time under the provisions of G.S. § 15-173.

1. The felonious assault case.—The evidence bearing upon this case discloses that in September, 1950, William Penley, the prosecuting witness, age 22, was living in Hickory, North Carolina, and driving a taxicab. On Saturday night, September 23, 1950, between 8:00 and 9:00 o'clock, Penley picked up the defendant at Hutto's Grocery, just outside of Hickory. The defendant, after arranging with Penley to take him to North Wilkesboro, requested that they drive by Whitten's junk yard and get a friend who was to accompany the defendant. This was done. The friend was picked up at the junk yard, which is about 150 yards from where the defendant got in the cab. At the junk yard there was a building, and scrap was piled up all around it. The friend was at the back of the building. He was standing there alone. It was getting dusk dark but Penley, the taxi driver, said he could see all right. When the cab stopped, the defendant's friend got in the back seat. The defendant remained in the front seat. Penley did not know the defendant's friend,—said he had never seen him before. As he got in the cab, there was no conversation except the defendant stated, "I used to work with this boy here." The defendant then said he wanted to go get a drink before they went to North Wilkesboro, and after crossing the Catawba River, going toward Lenoir, the defendant told Penley to pull off at the next side road. He did so. When they had gone a short distance down the side road, the defendant requested Penley to pull off on a dirt road, and while the cab was traveling down this road it struck a small bump,—"slowed down for the bump,"—and that was the last thing Penley remembered until "he woke up eight days later in the hospital," suffering from serious head wounds.

Penley was found the following morning about 3:30 o'clock in his own bed at Hickory in an unconscious condition. The taxicab was parked in his yard and was locked. His glasses were broken and lying in the front seat. There was an iron pipe about 18 inches long and 1½ inches in diameter lying on the front seat of the cab. It had blood on it. The cab was bloody inside,—more blood on the back than in front. "Looked like the man had laid in the back longer than in the front. * * * It looked like he had laid in the back seat for several hours." Some pieces of pipe material "were later found at the junk yard." The evidence discloses that Penley had a fractured skull, near his right ear. The ear was cut off except for a small piece of skin holding it. He had two cuts near the right ear,—"one behind the ear and the other just a little farther behind than that one." He had four deep cuts across his forehead, each cut being approximately four inches long. The attending physician gave as his opinion that the wounds were not produced by a knife, but by a blunt instrument. The doctor further said that Penley's unconsciousness most likely "was produced at the time the blow was delivered." On cross examination the doctor also stated that in his opinion a person sitting in the front seat alongside Penley could not have inflicted the lick from that angle, "but if the head were turned, it might be possible. I can't say for sure as to that." The prosecuting witness remained in the hospital fifteen days and did not regain his memory until some five weeks later.

John Clark, owner of the taxicab, testified that Penley called him and said he had a trip to North Wilkesboro and that he, Penley, said he knew one of the parties but did not tell who he was. R. W. Turkelson, of the State Bureau of Investigation, testified he was called in to investigate the case; that he was unable to develop any finger prints in or upon the automobile or on the iron pipe. He said he visited the area where the attack is alleged to have taken place and that "there is no one that lives on the * * * road that winds up around the hill and there are no houses on it." This witness further testified that Penley for a time could not remember anything that happened on the night of September 23, but later, on November 2, he told the witness that "the fellow who had been in the cab that night used to work with him at the Blue Ridge Ice Cream Company. * * * said he didn't know his last name but that he used to call him ``Glenn'," said he knew him well. The witness found the defendant's name on the records of the Ice Cream Company and then "Penley said that was his last name." The witness Turkelson showed Penley a picture of the defendant and "he said that was the man." The defendant was arrested under warrant issued November 11, 1950. His friend who was in the cab has not been found or identified.

The foregoing evidence points unerringly to the fact that Penley's wounds were inflicted either by the defendant or by his friend who was sitting on the back seat of the taxicab. And if it be conceded, as contended by the defendant, that the evidence is insufficient to support a finding that he, from his seat alongside of Penley, inflicted the blow or blows, nevertheless this record impels the view that the defendant and his friend were acting by prearrangement. It was the defendant who arranged the trip. First, he engaged the cab, ostensibly for a trip to North Wilkesboro. Then, he directed the driver to go by the junk yard where the friend was waiting in semi-darkness. Next, it was the defendant who, under the pretext of going for a drink of liquor, diverted the cab from the main highway onto a lonely, deserted side road along which Penley, without previous warning, was struck with a piece of iron pipe similar to pipe found later at the junk yard where the friend was picked up. Thus, the events leading up to the assault fall into a pattern which clearly indicates concert between the defendant and his friend, and where this appears each may be found equally guilty. State v. Gibson, 226 N.C. 194, 37 S.E.2d 316; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Hart, 186 N.C. 582, 120 S.E. 345; State v. Kendall, 143 N.C. 659, 57 S.E. 340; State v. Jarrell, 141 N.C. 722, 53 S.E. 127.

It is settled law that all who are present (either actually or constructively) at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose, to the knowledge of the actual perpetrator, are principals and are equally guilty. State v. Jarrell, supra, 141 N.C. 722, 53 S.E. 127; State v. Gaston, 73 N.C. 93; State v. Hoffman, 199 N.C. 328, 154 S.E. 314.

"A person aids when being present at the time and place he does some act to render aid to the actual perpetrator of the crime, though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages another to commit a crime." State v. Johnson, 220 N.C. 773, at page 776, 18 S.E.2d 358, at page 360.

This evidence, taken in its light most favorable to the State, as is the rule on motion to nonsuit, State v. Hovis, 233 N.C. 359, 64 S.E.2d 564, is sufficient to justify a finding that the defendant's presence amounted to active encouragement of his friend in the commission of the felonious assault shown to have been committed. State v. Williams, supra, 225 N.C. 182, 33 S. E.2d 880; State v. Allison, 200 N.C. 190, 156 S.E. 547; State v. Jarrell, supra, 141 N.C. 722, 53 S.E. 127.

In State v. Williams, supra, 225 N.C. 182, at page 184, 33 S.E.2d 880, at page 881, it is stated: "``Though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement', and in contemplation of law this was aiding and abetting."

True, the evidence relied on here is largely circumstantial, but even so, such evidence is a recognized and accepted instrumentality in the ascertainment of truth. State v. Cash, 219 N.C. 818, 15 S.E.2d 277; State v. King, 219 N.C. 667, 14 S.E.2d 803.

Here, the series of incriminating facts, taken in its entirety, makes out a prima facie case. The court below properly submitted the felonious assault case to the jury. The verdict and judgment in that case will be upheld.

2. The armed robbory case.—The evidence is briefly this: Penley said: "I had about $100 on or about my person and all except $49.91 was gone." On cross examination he testified: "I don't know the exact date that I found that money was gone, but I woke up in the hospital 8 days later. * * * I don't know for sure how much was missing, but do know some was missing." It was in evidence that nine people lived at the Penley home, either members of his family or distant relatives. John Clark, owner of the cab, said when he saw the cab parked in the Penley yard next morning "the money changer was there. It had $6.00 in it."

The foregoing evidence is inconclusive. It is full of hiatuses. Approximately 7½ hours elapsed from the time of the assault until Penley was found in bed with his car parked in the driveway. The evidence shows nothing in reference to his money during this interim, nor during the ensuing period of eight days while he was unconscious. True, the evidence of the brutal assault bulks large as tending to furnish a motive for robbery, but this seems to be negatived by most of the other facts and circumstances developed in the case. It is significant that $49.91 of the money on Penley's person was not missing, and that the money changer with $6 in it was found in the cab the next morning. These circumstances are inconsistent with the theory of robbery.

The evidence here discloses no more than an opportunity for the defendant to have taken the money, with equal opportunity for it to have been lost or disposed of in other ways. This is insufficient. State v. Murphy, 225 N.C. 115, 33 S.E.2d 588.

Where circumstantial evidence is relied on to convict, as in the present case, the rule is: "that the facts established or adduced on the hearing must be of such a nature and so connected or related as to point unerringly to the defendant's guilt and exclude any other reasonable hypothesis." State v. Harvey, 228 N.C. 62, at page 64, 44 S.E.2d 472, at page 474. "Moreover, the guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with his guilt. They must be inconsistent with his innocence." State v. Webb, 233 N.C. 382, at page 387, 64 S.E.2d 268, at page 272. Evidence "which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict, and should not be left to the jury." State v. Vinson, 63 N.C. 335, at page 338.

A careful perusal of the record leaves us with the impression that the evidence is insufficient to support the armed robbery indictment and that the defendant's motion for nonsuit should have been allowed.

The results, then, are:

In the armed robbery case: Reversed.

In the felonious assault case: No error.