State v. Burgess , 245 N.C. 304 ( 1957 )

96 S.E.2d 54 (1957) 245 N.C. 304

STATE
v.
Ralph BURGESS, Wayne Watson, Nell Davis, Travis Triplett and Frank Martin.

No. 364.

Supreme Court of North Carolina.

January 11, 1957.

Atty. Gen. George B. Patton, Asst. Atty. Gen. Claude L. Love, for the State.

Justus C. Rudisill, Jr., Newton, Mc-Laughlin & Battley, Statesville, Allen, Henderson & Williams, Elkin, for defendant Ralph Burgess.

Frank C. Patton, Morganton, Wade H. Lefler, Newton, Ray Jennings, Moravian Falls, W. H. McElwee, North Wilkesboro, for the other defendants.

DENNY, Justice.

The defendants Watson, Davis, Martin and Triplett are insisting upon a new trial, while the defendant Burgess strenuously argues and contends that his motion for judgment as of nonsuit should be allowed and assigns the denial thereof as error.

The defendant Burgess takes the position that there is no evidence that Hoglen was actually assaulted by him or that he participated in any manner in the assaults upon Hoglen or that he encouraged, aided or abetted the perpetrators of the assaults. He further contends that while there is evidence of his presence at the cabin on two occasions while Hoglen was there, there is no evidence that Hoglen was assaulted by anyone in his presence. This defendant is relying on State v. Ham, 238 N.C. 94, 76 S.E.2d 346; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Johnson, 220 N.C. 773, 18 S.E.2d 358, and State v. Hart, 186 N.C. 582, 120 S.E. 345, to sustain his position.

In the case of State v. Ham, supra, this Court, in substance, held that in order to render one who does not actually participate in the commission of the crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrators of the crime, or by his conduct made it known to such perpetrators that he was standing by to render assistance when and if it should become necessary.

An aider and abettor is defined in our decisions as one who advises, counsels, procures or encourages another to commit a crime. State v. Hart, supra; State v. Holland, supra; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Ham, supra.

In the case of State v. Birchfield, supra [235 N.C. 410, 70 S.E.2d 7], Ervin, J., speaking for the Court, said: "The mere presence of a person at the scene of a crime at the time of its commission does not make him a principal in the second degree and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crime, or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes necessary to its consummation."

In State v. Holland, supra, it is said [234 N.C. 354, 67 S.E.2d 274]: "It is settled law that all who are present (either actually or constructively) at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose, to the knowledge of the actual perpetrator, are principals and are equally guilty."

In the case of State v. Johnson, supra, the Court said [220 N.C. 773, 18 S.E.2d 360]: "A person aids when being present at the time and place he does some act to render aid to the actual perpetration of the crime, though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or who either commands, advises, instigates or encourages another to commit a crime."

Stacy, C. J., in speaking for the Court in the case of State v. Hart, supra, said [186 N.C. 582, 120 S.E. 346]: "An ``aider and abettor' is one who advises, counsels, procures, or encourages another to commit a crime, whether personally present or not at the time and place of the commission of the offense."

In 22 C.J.S., Criminal Law, § 79, p. 143, it is said: "A person is a party to an offense if he either actually commits the offense or does some act which forms a part thereof, or if he assists in the actual commission of the offense or of any act which forms part thereof, or directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof. To constitute one a party to an offense it has been held to be essential that he be concerned in its commission in some affirmative manner, as by actual commission of the crime or by aiding and abetting in its commission and it has been regarded as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent."

In passing upon a motion for nonsuit, the evidence must be considered in the light most favorable to the State, and it is entitled to the benefit of every reasonable inference to be drawn therefrom. State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Gentry, 228 N.C. 643, 46 S.E. 2d 863; State v. Ritter, 239 N.C. 89, 79 S.E.2d 164.

There can be no conjecture about the evidence tending to show these facts: For some time prior to the occasion in question, Hoglen was employed by the defendants Burgess and Watson to drive a truck for them; that the defendant Davis and Hoglen were sent to Washington by Burgess and Watson to buy a truck load of liquor; that Burgess gave Hoglen $13,000 in cash for this purpose and Bud Watts gave him $1,000, while unnamed parties gave him $4,000; that all together Davis and Hoglen were entrusted with $18,000, and their truck. The money was lost. When Hoglen got back to Taylorsville he was met by Davis, an employee of Burgess, Watson, one of the employers of Hoglen, and one Triplett. Davis informed Hoglen that Burgess was at the cabin, which turned out to be near Oxford Lake and the place where he was assaulted. Hoglen was brutally assaulted as set out in the statement of facts. Burgess and Martin arrived at the cabin after Hoglen had been assaulted and while he was still handcuffed and hanging to a rafter in the cabin. Hoglen denied having taken the money; Burgess replied "he was afraid he did." Burgess left while Hoglen was still hanging to the rafter in the cabin. No motive or reason whatsoever was given for torturing and beating Hoglen, except that the money was missing and Davis, Martin, Watson and Triplett said they thought Hoglen had taken it and that was why he was being treated as he was. On Friday night, 13 August 1954, Burgess told Hoglen's wife that he did not know where her husband was, when, as a matter of fact, he had been in the cabin that day and talked to Hoglen and knew what was being done to him. Later that night he drove to Fort Mill, South Carolina, to Hoglen's home, and told Mrs. Hoglen that her husband was in jail in Baltimore, charged with taking $18,000 and giving it to her in Greensboro. No information that might lead to a recovery of the money was obtained from the wife of Hoglen or from the beaten and tortured Hoglen. Finally, after Hoglen had been detained by force at the cabin from 2:00 or 3:00 o'clock on the morning of 13 August until the midafternoon of 14 August, Burgess showed up for the second time at the cabin and called all his co-defendants, except Triplett, out for a conference. After the conference, he suggested that they go swimming. Burgess and Triplett left the cabin. Shortly thereafter Bud Watts arrived at the cabin in Hoglen's car, and the defendant Watson told the defendant Martin to help Hoglen dress. The handcuffs were removed and Hoglen was aided in dressing and left with Watts in Hoglen's car for his home in Fort Mill, South Carolina about 4:00 p. m.

We think the reasonable inference to be drawn from Burgess' conduct, his suppression of the truth as to the whereabouts of Hoglen when inquiry was made of him by Hoglen's wife; his appearance at the home of Hoglen in Fort Mill at 2:00 or 2:30 a. m., Saturday, 14 August; his statement to the effect that her husband was in jail in Baltimore for having taken $18,000 and delivering it to her in Greensboro; his later appearance that day at the cabin which apparently resulted in the release of Hoglen, support the view that Burgess was the instigator of the crime and procured his co-defendants to commit the crime.

There is no evidence that any of the other defendants suffered a financial loss by reason of the disappearance of the money. The defendant Burgess, and he alone, was to benefit from any confession wrung from Hoglen that might lead to the recovery of the money, insofar as the other defendants were concerned. "A man's motive may be gathered from his acts, and so his conduct may be gathered from the motive by which he was known to be influenced." State v. Wilcox, 132 N.C. 1120, 44 S.E. 625, 633; State v. Adams, 136 N.C. 617, 48 S.E. 589; State v. Coffey, 210 N.C. 561, 187 S.E. 754; State v. Church, 231 N.C. 39, 55 S.E.2d 792.

The attorneys for the defendant Burgess were unusually alert in safeguarding his rights with respect to the admission of evidence. And the contentions of all the defendants were presented on the appeal in this Court with commendable zeal. Even so, the State made out a case for the jury.

The record contains 29 assignments of error based on 132 exceptions. Assignments of error Nos. 3 through 22 are based on exceptions to the charge. A careful examination of the charge, however, when considered contextually, as it should be, leads us to the conclusion that it is in substantial accord with our decisions on the questions presented by the exceptions and is free from prejudicial error. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Manning, 221 N.C. 70, 18 S.E.2d 821. The other assignments of error are formal.

In the trial below we find no error.

No error.

JOHNSON, J., not sitting.