State v. Little , 278 N.C. 484 ( 1971 )

180 S.E.2d 17 (1971) 278 N.C. 484

STATE of North Carolina
v.
James Earl LITTLE.

No. 60.

Supreme Court of North Carolina.

April 14, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. I. Beverly Lake, Jr., for the State.

Ernest H. Morton, Jr., Albermarle, for defendant appellant.

MOORE, Justice.

Defendant first assigns as error the court's denial of his motion for judgment as of nonsuit. Defendant contends the State failed to offer substantial evidence that defendant shared in the criminal intent of the actual perpetrators, and that this is one of the material elements needed to convict defendant for aiding and abetting.

Intent is an attitude or emotion of the mind, and is seldom, if ever, susceptible by proof by direct evidence. It must ordinarily be proven by facts and circumstances from which it may be inferred. State v. Arnold, 264 N.C. 348, 141 S.E.2d 473; State v. Gammons, 260 N.C. 753, 133 S.E.2d 649; State v. Petry, 226 N.C. 78, 36 S.E.2d 653; 2 Strong's N.C.Index 2d, Criminal Law § 2.

Justice Ervin, in State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5, states:

"To constitute one a principal in the second degree, he must not only be actually or constructively present when the crime is committed, but he must aid or abet the actual perpetrator in its commission. State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Davenport, 156 N.C. 596, 72 S.E. 7; State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58. A person aids or abets in the commission of a crime within the meaning of this rule when he shares in the criminal intent of the actual perpetrator (State v. Oxendine, 187 N.C. 658, 122 S.E. 568), and renders assistance or encouragement to him in the perpetration of the crime. State v. Hoffman, 199 N.C. 328, 154 S.E. 314; State v. Baldwin, 193 N.C. 566, 137 S.E. 590. While mere presence cannot constitute aiding and abetting in legal contemplation, a bystander does become a principal in the second degree by his presence at the time and place of a crime where he is present to the knowledge of the actual perpetrator for the purpose of assisting, if necessary, in the commission of the crime, and his presence and purpose do, in fact, encourage the actual perpetrator to commit the crime. State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Johnson, 220 N.C. 773, 18 S.E.2d 358; State v. Hoffman, supra; State v. Cloninger, 149 N.C. 567, 63 S.E. 154; State v. Jarrell, 141 N.C. 722, 53 S.E. 127, 8 Ann.Cas. 438; State v. Chastain, 104 N.C. 900, 10 S.E. 519."

Accord, State v. Swaney, 277 N.C. 602, 178 S.E.2d 399; State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655. See also, Note, 35 N.C.L.Rev. 285 (1956-57).

"In determining whether a person is guilty as a principal in the second degree, evidence of his relationship to the actual perpetrator, of motive tempting him to assist in the crime, his presence at the scene, and his conduct before and after the crime are circumstances to be considered." 2 Strong's N.C.Index 2d, Criminal Law § 9, p. 493; State v. Birchfield, supra.

The State's evidence in the present case tends to show (1) defendant shot the proprietor of the Top Hat some four years before the night Massey was killed, and was later told by the proprietor not to return to the Top Hat; (2) about one month prior to the shooting in question the defendant entered this establishment with a gun but then left; (3) on the evening of the fatal shooting the defendant borrowed a shotgun which was later used in the shooting; (4) on this occasion the defendant, in company with the two principals, backed his automobile into the parking lot of the place where the shooting occurred; (5) the two principals and defendant were near defendant's car by themselves from the time the car was backed into the parking lot until the two principals walked into the building with the shotguns; (6) the defendant opened the trunk of his car and the two principals reached in and procured shotguns; (7) after removing the shotguns from the trunk of defendant's car, the principals entered the premises in question with the shotguns, while the defendant remained in the car; and (8) after the shooting the two principals ran from the building and got into defendant's car, where defendant was waiting under the wheeel, and defendant then drove away.

Considering this evidence in the light most favorable to the State, as we must on a motion for judgment as of nonsuit, we hold there was ample evidence to go to the jury on the charge of aiding and abetting Barbers and Watkins in the shooting of Massey, and that the trial court correctly overruled defendant's motion for judgment as of nonsuit. State v. Swaney, supra; State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Davis, 272 N.C. 469, 158 S.E.2d 630; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; State v. Kelly, 243 N.C. 177, 90 S.E.2d 241; 2 Strong's N.C. Index 2d, Criminal Law § 104, p. 648.

Defendant next assigns as error the court's failure to sustain his objection to certain testimony of Sheriff McSwain concerning a conversation the sheriff had with Charlie Barbers. Barbers testified for the defendant that he did not see defendant that night until defendant came to the Top Hat by himself, and that he and "Snap" Watkins had no arrangements with the defendant to go to the Top Hat or for the defendant to carry them away after the shooting. Sheriff McSwain on rebuttal was asked, "What, if anything, did you say to him [Barbers] prior to his making any statements, if he did?" Sheriff McSwain answered: "I told him that he had been brought back here for the James Honey Little trial and I wanted to discuss with him any activities that James Little had on the night of March 14. I told him that we only wanted him and Eugene to tell the truth about what happened. And Barbers told me that just before he and Snap went into the Top Hat Cafe that Honey Little loaded one of the guns and that he, Little, says, ``I won't leave you.'" Defendant objected. The objection was overruled. Defendant did not object to the question but objected to the answer. He did not move to strike the answer but now contends that the answer was not responsive to the question, and that the court erred in overruling his objection. This contention is without merit.

"In case of a specific question, objection should be made as soon as the question is asked and before the witness has time to answer. Sometimes, however, inadmissibility is not indicated by the question, but becomes apparent by some feature of the answer. In such cases the objection should be made as soon as the inadmissibility becomes known, and should be in the form of a motion to strike out the answer or the objectionable part of it." Stansbury, N.C.Evidence § 27 (2d Ed., 1963). Accord, State v. Battle, 267 N.C. 513, 148 S.E.2d 599; Huffman v. Gaither Lumber Co., 169 N.C. 259, 85 S.E. 148. Although part of Sheriff McSwain's answer was not responsive to the question, that part not responsive was competent for the purpose of impeaching Barbers. State v. Butler, 269 N.C. 483, 153 S.E.2d 70; State v. McPeak, 243 N.C. 273, 90 S.E.2d 505; State v. Wellmon, 222 N.C. 215, 22 S.E.2d 437; Stansbury, N.C.Evidence § 46 (2d Ed., 1963); 2 Strong's N.C.Index 2d, Criminal Law § 89. If competent for the purpose of impeachment, the answer does not become incompetent because unresponsive to the question. "Whether the answers were responsive to the questions is not controlling. The determinative question before the court below was whether the answers were relevant and competent * * *. If the answers furnished relevant facts, they were none the less admissible * * * [even though] they were not specifically asked for." In re Will of Tatum, 233 N.C. 723, 65 S.E.2d 351. Accord, State v. Staten, 271 N.C. 600, 157 S.E.2d 225; In re Will of Taylor, 260 N.C. 232, 132 S.E.2d 488.

Before Sheriff McSwain testified concerning Barbers' statement, Jack Copley also testified on rebuttal, without objection, to a conversation which he had with Barbers in which Barbers made substantially the same statements he made to Sheriff McSwain. "It is the well-established rule that when evidence is admitted over objection but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost. Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56; State v. Godwin, 224 N.C. 846, 32 S.E.2d 609; Stansbury's N.C.Evidence, 2d ed., § 30." State v. Owens, 277 N.C. 697, 178 S.E.2d 442. Accord, Dune's Club v. Insurance Co., 259 N.C. 294, 130 S.E.2d 625.

For the reasons stated, the trial court properly overruled defendant's objection.

In the two assignments brought forward by the defendant, we find no error.

No error.

LAKE, J., did not participate in the consideration or decision of this case.