State v. Wall , 9 N.C. App. 22 ( 1970 )

175 S.E.2d 310 (1970)

STATE of North Carolina
v.
William J. WALL.

No. 7012SC432.

Court of Appeals of North Carolina.

July 15, 1970.

Atty. Gen. Robert Morgan and Staff Atty. Donald M. Jacobs, Raleigh, for the State.

MacRae, Cobb, MacRae & Henley, by James C. MacRae, Fayetteville, for defendant appellant.

PARKER, Judge.

Appellant assigns as error the refusal of the court to grant his motions for nonsuit on the charges of armed robbery of Gregg and larceny of the Dow automobile. He contends nonsuit was proper in these two cases since there was no evidence that it was the defendant who took the wallet from Gregg's pocket and insufficient evidence that Gregg drove away in the Dow automobile. There is no merit in these contentions.

Gregg, appearing as a witness for the State, after testifying as to the kidnapping and as to being bound and gagged, testified: "Someone took my wallet from my pocket, then they shoved me into a little doghouse and pushed it against the station. During this the defendant was standing there with a gun pointed at me." One who stands holding a gun pointed at the victim while another removes a wallet from the victim's pocket is in no position to contend he didn't know the wallet was being stolen. From the evidence the jury was justified in finding to the contrary. From the evidence the jury was also fully justified in finding that defendant joined his two companions in driving away in the Dow automobile. "It is well settled that one who is present, aiding and abetting in a crime actually perpetrated by another, is equally guilty with the actual perpetrator." State v. Garnett, 4 N.C.App. 367, 167 S.E.2d 63.

The only other assignment of error brought forward in appellant's brief relates to the felonious assault case. Appellant contends that the court erred in instructing the jury in that case in that the court, while instructing the jury on the lesser included offenses, instructed them to consider first the more serious charges and then to move to the lesser charges only if they found defendant not guilty of the more serious offenses. Appellant argues that the jury should have the unbridled right to consider each offense separately and in any order they see fit. No authority is cited for this position and reason does not support it. There is no merit to this assignment of error.

Appellant has had a fair trial before an able and experienced trial judge. In the record before us we find

No error.

MALLARD, C. J., and HEDRICK, J., concur.