Torain v. State , 20 N.C. App. 69 ( 1973 )

200 S.E.2d 665 (1973) 20 N.C. App. 69

Nathaniel Lee TORAIN
v.
STATE of North Carolina.

No. 7315SC805.

Court of Appeals of North Carolina.

November 28, 1973. Certiorari Denied February 5, 1974.

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

Haywood, Denny & Miller by James H. Johnson, III, Chapel Hill, and William N. Farrell, Jr., for defendant.

Certiorari Denied by Supreme Court February 5, 1974.

BRITT, Judge.

Defendant assigns as error the denial of his motions for judgment of nonsuit. The evidence, considered in the light most favorable to the State, tended to show:

Around 8:45 p.m. on Friday, 25 August 1972, defendant, accompanied by Keith and Jackie Graves, drove an automobile to the grocery store of Julian Ray on Highway 54 near Carrboro. The purpose in going to the store was "to get some money." Defendant stopped the car at the store and Keith and Jackie Graves entered the store, one with a sawed-off shotgun and the other with a pistol. The two who entered the store forced Ray to open the cash register and give them the money which was in it. They also took Ray's wallet. The cash register contained approximately $300 and the wallet between $500 and $600. Defendant stayed with the car. Later that night defendant and Jackie Graves were together and were stopped by Burlington police en route "to the bus station." While riding in the police car, Jackie Graves hid the money under the front seat of the car and, pursuant to information provided by defendant on 2 September 1972, the money was found in the Burlington police car on 5 September 1972.

It is well settled that when two or more persons aid and abet each other in the commission of a crime, all are principals and equally guilty. State v. Sellers, 266 N.C. 734, 147 S.E.2d 225 (1966); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). To be guilty as an aider and abettor, a defendant's actual presence is not necessary as he may be constructively present. State v. Sellers, supra; State v. Bell, supra.

In the case at bar, defendant contends the evidence was insufficient to establish his presence at or near Ray's store at the time of the robbery. We reject this contention. The evidence tending to show that defendant drove the automobile that carried the Graves men to the store, that to the knowledge of defendant the Graves men entered the store, one of them armed with a shotgun and the other with a pistol, that defendant "stayed with the car," that later that night they were together en route to the bus station when Burlington police "stopped" them and that defendant told police several days later where they could find the stolen money, was sufficient to support an inference that defendant was constructively present at the time of the robbery. The assignment of error is overruled.

Defendant's other assignments of error relate to the trial court's instructions to the jury. After carefully reviewing the instructions, with particular reference to those assigned as error, we conclude that the instructions were free from prejudicial error.

Defendant received a fair trial and the sentence imposed was within the limits provided by statute.

No error.

MORRIS and BALEY, JJ., concur.