State v. Sellers , 266 N.C. 734 ( 1966 )

147 S.E.2d 225 (1966) 266 N.C. 734

STATE
v.
Adrian Henry SELLERS.

No. 174.

Supreme Court of North Carolina.

March 23, 1966.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwyn, for the State.

Joshua S. James, Wilmington, for defendant appellant.

PER CURIAM.

The exceptions noted in the record are deemed abandoned since none of them has been brought forward as an assignment of error or discussed in the defendant's brief. Rule 19(3); Rule 28; State v. Bittings, 206 N.C. 798, 175 S.E. 299. However, we have examined them. We agree with his counsel that none of them relates to any reversible error.

The defendant's motion in arrest of judgment is denied in each case. Such a motion may be allowed only on the ground of a defect appearing upon the face of the record proper, which does not include the evidence introduced at the trial. Variance between indictment and proof is not ground for granting a motion in arrest of judgment. Defects which appear only by aid of evidence cannot be the subject of such a motion. State v. Kimball, 261 N.C. 582, 135 S.E.2d 568; State v. Reel, 254 N.C. 778, 119 S.E.2d 876; State v. Williams, 253 N.C. 337, 117 S.E.2d 444, 92 A.L.R. 2d 513; State v. McKnight, 196 N.C. 259, 145 S.E. 281.

The plea of nolo contendere in the second (Rouse) case supports the judgment and sentence therein as sufficiently as a conviction or plea of guilty would have done. Mintz v. Scheidt, 241 N.C. 268, 84 S.E.2d 882; State v. Cooper, 238 N.C. 241, 77 S.E.2d 695. There is no suggestion of similarity between the facts of the two cases. Even if there were reversible error in the first (Bryan) case, the significance of which defendant did not then understand, this would not nullify his plea of nolo contendere in the second or render defective the judgment and sentence imposed upon the basis of such plea.

Furthermore, we have reviewed the entire record and we find no such error in the first (Bryan) case. The evidence is ample to show the offense charged. The defendant and Yopp determined to rob Mrs. Bryan and went to her home together for that purpose, each armed with a pistol. Together they cut the telephone wire. Pursuant to plan, the defendant withdrew to a point en route to their get-away car to wait there "just in case there was any trouble." He was the owner and driver of the get-away car. They divided the stolen money equally— their own appraisal of the part he played in the robbery.

"When two or more persons aid and abet each other in the commission of a crime, all are principals and equally guilty." State v. Horner, 248 N.C. 342, 103 S.E.2d 694. The defendant not only collaborated with Yopp in planning and setting the stage for the robbery and in escaping with the stolen money, but also waited and watched, armed with a pistol, near enough to the scene to render aid if needed. Thus, he was constructively present when the robbery actually occurred and is guilty as a principal in the second degree. State v. Gaines, 260 N. C. 228, 132 S.E.2d 485; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; 21 Am. Jur.2d, Criminal Law, § 121; 22 C.J.S. Criminal Law, § 86; Wharton, Criminal Law, 12th ed., § 256. As such, the act of Yopp in pointing the pistol at Mrs. Bryan and firing it is deemed the act of the defendant. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241; State v. Knotts, 168 N.C. 173, 83 S.E. 972.

No error.

MOORE, J., not sitting.