State v. Martin , 30 N.C. App. 166 ( 1976 )

226 S.E.2d 682 (1976) 30 N.C. App. 166

STATE of North Carolina
v.
Lee Roy MARTIN.

No. 7618SC208.

Court of Appeals of North Carolina.

July 21, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Morgan, Byerly, Post, Herring & Keziah by W. B. Byerly, Jr., High Point, for defendant.

BROCK, Chief Judge.

Defendant assigns as error the denial of his motion for judgment of nonsuit.

"At common law, an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment." 21 Am.Jur.2d, Criminal Law, § 126, p. 200. This same definition is applicable to our statute, which reads: "If any person shall become an accessory after the fact to any felony . . . such person shall be guilty of a felony . . .." G.S. 14-7. "To constitute a person an accessory after the fact these essentials must appear: (1) The felony must have been committed. (2) The accused must know that the felony has been committed by the person received, relieved or assisted. (3) The accessory must render assistance to the felon personally." State v. Potter, 221 N.C. 153, 19 S.E.2d 257 (1942).

It seems clear in this case that the State offered evidence tending to show (1) that the felony of manslaughter had been committed; (2) that defendant knew that Moorefield had committed the felony; and (3) that defendant undertook to assist Moorefield in concealing the crime and avoiding arrest by first planning to dispose of the victim's body and, secondly, by preparing a written statement for Moorefield's signature, which indicated that the gun belonged to the victim and that the victim shot himself. We think the fact that defendant was unsuccessful in his efforts is immaterial because clearly his design was to help the principal felon evade the law. "It is not necessary that the aid furnished be effective to enable the felon to escape all or a part of his punishment." 22 C.J.S. Criminal Law § 99, p. 277. In a like manner defendant's motive in trying to conceal the fact that he, as a convicted felon, was in possession of the pistol does not excuse his actions in endeavoring to assist the principal felon in evading arrest and prosecution.

Defendant strenuously argues that a statement made in State v. Potter, supra, entitles him to a dismissal of the charges against him because his actions were primarily for the advantage of himself and not for the principal felon. The statement in Potter is a quote from American Jurisprudence. It reads as follows: "Where . . the concealment of knowledge of the fact that a crime has been committed, or the giving of false testimony as to the facts is made for the purpose of giving some advantage to the perpetrator of the crime, not on account of fear, and for the fact of the advantage to the accused, the person rendering such aid is an accessory after the fact." (emphasis added). 14 Am.Jur., Criminal Law, § 103, p. 837.

There are several reasons why defendant's reliance upon the above quote is ill founded. First, the principle above-quoted is applicable to situations where a person merely fails to give information of the committed felony or denies knowledge of the committed felony. This is made clear by the sentence in the text which immediately precedes the one quoted. Secondly, Potter was not concerned with that type of concealment of knowledge of a felony, and the second two sentences quoted from the American Jurisprudence text were not essential to the disposition of the case before the court. Thirdly, we have researched the source material for the quoted sentence from American Jurisprudence, i. e., Blakely v. State, 24 White & W. 616, 7 S.W. 233, 5 Am. St. Rep. 912 (1888), and 19 Ann.Cas. 144. The American Jurisprudence text is a direct quote from the annotation in 19 Ann.Cas. 144, which, in turn, cites as its authority Blakely v. State, supra. A reading of Blakely discloses that it holds that two witnesses to a murder who were coerced by a third witness to the murder to give false information to a magistrate were accomplices of the third witness as an accessory after the fact. In so holding, the court stated: "In agreeing to do so, and in doing so, no matter what the motive, they made themselves accomplices, or particeps criminis in the offense which was committed [the felony of accessory after the fact] by their false testimony. If a witness implicates himself, it is immaterial that he claims to have been coerced." Blakely v. State, supra. It therefore seems clear that Blakely does not support the cited text. Furthermore, the current text of American Jurisprudence has deleted the sentence relied upon by defendant. See 21 Am.Jur.2d, Criminal Law, § 126. Likewise, the text of Corpus Juris Secundum does not support defendant's argument. See 22 C.J.S. Criminal Law §§ 95-99. And finally, the meaning of the sentence relied on by defendant is unclear and susceptible of various constructions. In our view this argument by defendant is without merit.

After the verdict of the jury was returned in this case, the principal felon pleaded guilty to the felony of involuntary manslaughter. Defendant moved in arrest of judgment, arguing that defendant was convicted of the felony of accessory after the fact to voluntary manslaughter but that the principal felon was convicted only of involuntary manslaughter. This argument is not persuasive.

The offense of being an accessory after the fact to a felony is a substantive felony offense. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963). Manslaughter, whether voluntary or involuntary, is a felony. State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967). The trial judge explained the elements of both voluntary and involuntary manslaughter, as he should have done, because if defendant was an accessory after the fact to either one, he would be guilty of a substantive felony under G.S. 14-7. The trial judge did not submit an issue of accessory after the fact to involuntary manslaughter as a lesser included offense of the offense charged. He explained the elements of both voluntary and involuntary manslaughter and instructed the jury that if it found that the State had established either crime beyond a reasonable doubt, then the requirement of showing that the crime of manslaughter had been committed would be satisfied. We perceive this to be a correct application of the law. The question of punishment was for determination by the trial judge under G.S. 14-2, as in the case of other felonies for which no specific punishment is prescribed by statute.

We have examined defendant's remaining assignments of error and find them to be without merit. In our opinion defendant had a fair trial free from prejudicial error.

No error.

PARKER and ARNOLD, JJ., concur.