State v. Rankin , 284 N.C. 219 ( 1973 )

200 S.E.2d 182 (1973) 284 N.C. 219

STATE of North Carolina
v.
Ralph Wayne RANKIN.

No. 41.

Supreme Court of North Carolina.

November 14, 1973.

Atty. Gen. Robert Morgan by Associate Atty. Norman L. Sloan, Raleigh, for the State.

Dallas C. Clark, Jr., Asst. Public Defender, Greensboro, for defendant appellant.

LAKE, Justice.

The serious question presented by this appeal is whether the evidence for the State is sufficient to withstand this appellant's motion for judgment of nonsuit (Assignment of Error No. 3). Like the Superior Court and the majority of the Court of Appeals, we hold that it is.

As Justice Parker, later Chief Justice, said in State v. Taft, 256 N.C. 441, 124 S.E.2d 169, "It is thoroughly established law in this State that, without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty." State v. Terry, 278 N.C. 284, 179 S.E.2d 368; State v. Johnson, 272 N.C. 239, 158 S.E.2d 95; State v. Craddock, 272 N.C. 160, 158 S.E.2d 25. To be sufficient to sustain a conviction, it is not necessary that the evidence for the State show the defendant struck the blow, seized or carried away the property or spoke any word at the time and place of the offense. State v. Terry, supra; State v. Johnson, supra; State v. Childress, 267 N.C. 85, 147 S.E.2d 595.

The mere presence of the defendant at the scene of a crime, even though he is in sympathy with the criminal act and does nothing to prevent its commission, does not make him guilty of the offense. State v. Gaines, 260 N.C. 228, 132 S.E.2d 485; State v. Hargett, 255 N.C. 412, 121 S.E.2d 589. To sustain a conviction of the defendant, as principal in the second degree, the State's evidence must be sufficient to support a finding that the defendant was present, actually or constructively, with the intent to aid the perpetrator in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrator. Such communication of intent to aid, if needed, does not, however, have to be shown by express words of the defendant, but may be inferred from his actions and from his relation to the actual perpetrator. "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." Wharton, Criminal Law, 12th Ed., § 246, quoted with approval in State v. Hargett, supra; State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; and State v. Jarrell, 141 N.C. 722, 53 S.E. 127. State v. Gaines, supra, is distinguishable in that there the State offered exculpatory statements by the defendant and by the perpetrator of the offense, by which statements it was deemed bound.

It is elementary that, for the purposes of ruling upon a motion for judgment of nonsuit, evidence for the State is taken to be true, every reasonable inference favorable to the State is to be drawn therefrom and discrepancies therein are to be disregarded. State v. Felton, 283 N.C. 368, 196 S.E.2d 239; State v. Spencer, 281 N.C. 121, 187 S.E.2d 779; State v. Goines, 273 N.C. 509, 160 S.E.2d 469. The immediate flight of the defendant from the scene of the crime is a circumstance to be considered by the jury, although not sufficient per se to withstand the motion for judgment of nonsuit. State v. Gaines, supra.

Here, the evidence for the State is that Mrs. Langston did not observe the purse snatcher and his companions in the narrow alley prior to the time she was overtaken and her purse pulled from her grasp. Turning immediately, she observed Crawford, the appellant and Speed standing only five or six feet apart. After her purse was snatched and emptied of its contents by Crawford, the three men ran away together out of the alley, slowed down upon turning the corner onto South Elm Street, which would make them less conspicuous, and then proceeded together "as if nothing had happened" into a store where they made a purchase. The evidence was sufficient to permit, though not to compel, the jury to find the appellant was present at the scene of the offense for the purpose of aiding Crawford and that Crawford was aware of such purpose. Thus, there was no error in the denial of the motion for judgment of nonsuit.

The appellant's Assignment of Error No. 2 is to the admission of the testimony of Officer Rooker as to the statement made to him by the defendant Speed. The record shows clearly that this was a voluntary statement by the defendant Speed, no question whatever having been directed to him by the officer. Furthermore, nothing in the statement relates to the appellant. There is no merit in this assignment of error.

Assignment of Error No. 4 relates to the court's statement of the contentions of the State in the charge to the jury. As above shown, the evidence is sufficient to support a reasonable inference in accord with the State's contention, as stated by the court, that "these three defendants were together on this occasion and that they planned to do just what was done here in the snatching of this woman's pocketbook." That being true, if there was any error in the court's statement of the contentions of the State, the defendant should have called such error to the attention of the court before the jury retired to consider its verdict and his failure to do so is a waiver of such error. State v. Ford, 266 N.C. 743, 147 S.E.2d 198; State v. Saunders, 245 N.C. 338, 95 S.E.2d 876; Strong, N.C. Index 2d, Criminal Law, §§ 118, 163. No error in this statement of the State's contention in this respect having been so called to the attention of the trial judge, this assignment of error is overruled.

We find no basis for granting a new trial in the appellant's Assignments of Error Numbers 5 and 8, relating to the court's instructions to the jury concerning the elements of the offense with which the defendants were charged and to those things which the State was required to prove in order to convict. The court plainly instructed the jury that the fact that it might find one of the three defendants guilty, or that it might find two of them guilty, did not require it to find the third defendant guilty. The court clearly and correctly instructed the jury as to the elements of the offense charged and as to what it must find in order to convict a defendant by reason of his aiding and abetting the actual perpetrator in the commission of the offense. Considering the charge in its entirety, we find no basis for believing that the jury could have been misled thereby. These assignments of error are, therefore, overruled.

The remaining assignments of error set forth in the case on appeal are either formal or are waived by the failure to bring them forward in the brief and there support them by reason, argument or citation of authority. Rule 28, Rules of Practice in the Supreme Court; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; Strong, N.C. Index 2d, Criminal Law, § 166.

No error.