State v. Sauls , 1976 N.C. App. LEXIS 2540 ( 1976 )

Judge Parker

dissenting.

In my view the State’s evidence was sufficient to carry the case to the jury on the charge that defendant was an accessory before the fact to the crimes described in the indictment. Evidence presented by the State shows the following:

1. Busby and McVey went to defendant in the last week of November 1973 and told him they needed to get a North Carolina driver’s license in a fictitious name in order to cash checks;

2. Defendant gave them directions to the license bureau and instructed them that in order to get the licenses they needed to take a written test and show identification ;

3. Defendant loaned the men a car to drive to the license bureau;

4. At the license bureau, Busby obtained a North Carolina driver’s license in the name of Irvin R. Squires and McVey obtained a North Carolina driver’s license in the name of Hugh C. Harrison;

5. On 27 November 1973, Busby filled out a check in the name of E. E. Boone, Jr. as maker. The next day McVey cashed this check on 28 November 1973 at the First Union National Bank in Greensboro, signing the name Hugh C. Harrison and presenting his North Carolina driver’s license in the name of Hugh C. Harrison;

6. Defendant personally received $2,000 in cash from the two men upon their return from cashing the checks;

7. When Busby relayed his worry to defendant that a patrolman had taken down the license plate number of their car while at the license bureau, defendant told him “not to worry about anything, that if anybody came by, he’d cover up for [him]

8. Some days later, defendant called Busby to inform him that the police “know who you are” and advised him to get out of town.

One is guilty as an accessory before the fact if he shall “counsel, procure or command any other person to commit any felony.” G.S. 14-5. The term “counsel” is frequently used in criminal law to “describe the offense of a person who, not actually doing the felonious act, by his will contributed to it or procured it to be done.” State v. Bass, 255 N.C. 42, 51, 120 S.E. 2d 580, 586 (1961). Although defendant was not the originator of the criminal activities disclosed in this case, the above facts tend to show that, with full knowledge of what was going on, he actively contributed to the criminal activities of Busby and McVey by giving them advice on how to accomplish a key step in their unlawful scheme and by furnishing them transportation for that purpose. “To render one guilty as an accessory before the fact, he must have had the requisite criminal intent; and it has been said that he must have the same intent as the principal. It is well settled, however, that he need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded.” 22 C.J.S., Criminal Law, § 92, p. 271. Thus, the defendant in this case, just as did the defendant in State v. Bass, supra, with full knowledge of the other men’s intentions, gave both advice and assistance “in regard to and in furtherance of the proposed line of conduct and thereby contributed to it.” State v. Bass, supra, p. 51.

In my view the State’s evidence was sufficient to make out a prima facie case of counseling the commission of the felonies charged, and I would find no error in submitting the case to the jury.