State v. Sherian , 234 N.C. 30 ( 1951 )

65 S.E.2d 331 (1951) 234 N.C. 30

STATE
v.
SHERIAN et al.

No. 578.

Supreme Court of North Carolina.

June 7, 1951.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

John Kerr, Jr., Warrenton, and Jones & Jones, Rockingham, for defendants.

DENNY, Justice.

The defendants based their defense solely upon their contention that whatever assistance they rendered to James Diggs, after he feloniously assaulted Rex Howell, was done under compulsion and through fear of death or great bodily harm at the hands of Diggs, and not with the intention or for the purpose of enabling him to escape arrest and punishment.

In the charge in chief, the court instructed the jury that "the crime charged against the defendants * * * consists of the following elements: 1. The felony charged must have been committed; 2. The accused must have known that the felony had been committed by the person received, relieved on assisted; 3. The alleged accessory or accessories must render assistance to the felon."

Later in the charge the court instructed the jury on the 3rd element of the crime of accessory after the fact, as follows: "The accessory, which the State contends applies to the cases of these defendants, and each of them, must render assistance to the felon named in the bill of indictment, meaning James Diggs, in this case. Did these defendants, or either of them, render assistance to the felon personally?"

The contentions of the defendants were adequately given and the general principles of law with respect to the crime charged were correctly stated as ordinarily applicable to the crime of accessory after the fact, where the question of the voluntariness or involuntariness of the assistance rendered to the felon is not raised. State v. Williams, 229 N.C. 348, 49 S.E.2d 617; State v. Potter, 221 N.C. 153, 19 S.E.2d 257. But the court did not expressly instruct the jury as to the law applicable to the specific evidence offered by the defendants in support of their defense, in the event it should find the facts to be as testified to by them. G.S. § 1-180; State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53; State v. Herbin, 232 N.C. 318, 59 S.E.2d 635; State v. Sutton, 230 N.C. 244, 52 S.E.2d 921; State v. Fain, 229 N.C. 644, 50 S.E.2d 904. And it is apparent from the request made by the jury, for additional instruction, that it desired to be instructed on this precise question. The request being in the following language: "We request instruction on the last part. In other words, from the time the shooting took place, from that point under fear or otherwise."

In response to this request, the court proceeded to give the following instruction: "The defendants, or either of them, if found beyond a reasonable doubt to have been present at the time the alleged felony was committed, to wit, the assault upon Officer Howell, Rex Howell, received, relieved, comforted, or assisted the person committing such felony, who is alleged to be one James Diggs, or in any manner aided him to escape arrest or punishment, wilfully and feloniously, it would be your duty upon such findings beyond a reasonable doubt, to return a verdict of guilty as to such defendant or defendants. The question of what motivated these defendants, or either of them, subsequent to that time is a question of fact for you to determine. The court calls your attention to the fact that as a matter of law, these defendants are not being tried here for any relationship, if any they had, with the alleged crime committed by Diggs in the State of Virginia. The testimony relating to their conduct and their relationship in the State of Virginia and to their relationship to Diggs was competent in this case, and is competent for you to consider as bearing upon the alleged intent of the defendants after the alleged assault upon the officer in Richmond County."

The court then proceeded to recapitulate the contentions of the State and of the defendants. And after giving the contentions of the defendants, which included those with respect to the trip from Virginia, the court then concluded its charge in the following language: "On the contrary, if you find beyond a reasonable doubt that these acts, or any of them, were done for the purpose of relieving, protecting or assisting negatively or positively, the alleged felon, Diggs, then it would be your duty to return for your verdict one of guilty as to such defendant or defendants as you find as to. The guilt or innocence of these and each of them in this case is a question that you gentlemen are sworn to determine from all the testimony and all the circumstances in the light of the law as given you by the court."

It must be kept in mind that the only question before the jury, that was in dispute, was whether the assistance given by these defendants to James Diggs, after he feloniously assaulted Rex Howell, was done under compulsion and through fear of death or great bodily harm at the hands of James Diggs, as contended by them, or with the wilful and felonious intent and purpose to aid him to escape arrest and punishment. This was not only a substantial feature of the case, it was the crux of it. The testimony of the defendants themselves established every other element of the crime of accessory after the fact.

The defendants were entitled to have the court instruct the jury to the effect that if, upon a consideration of all the evidence, it failed to find beyond a reasonable doubt, that the assistance rendered to James Diggs, after he committed the felonious assault upon officer Howell, was rendered with the wilful and felonious intent to aid Diggs to escape arrest and punishment, and not under compulsion or through fear of death or great bodily harm, it should return a verdict of not guilty.

We do not think the charge given was adequate in this respect.

The defendants are entitled to a new trial, and it is so ordered.

New trial.