State v. Robinette , 33 N.C. App. 42 ( 1977 )

234 S.E.2d 28 (1977) 33 N.C. App. 42

STATE of North Carolina
v.
Joe ROBINETTE.

No. 7629SC855.

Court of Appeals of North Carolina.

April 20, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

Story, Hunter & Goldsmith, P. A., by C. Frank Goldsmith, Jr., Marion, for defendant-appellant.

PARKER, Judge.

In apt time defendant moved to dismiss the charges in this case on the ground that he had also been indicted for the first degree murder of Billy Hughes. He contends that since the State's theory in obtaining the first degree murder indictment was the so-called "felony-murder rule," i. e., a murder committed in perpetration of another felony, the lesser felonies for which defendant was tried in these cases became merged in the murder charge, and that for that reason it was error for the trial court to refuse to dismiss them so long as the defendant was still under indictment for murder. We do not agree. Defendant has not been brought to trial on the murder charge. Until that shall occur, the State remains free to proceed against him in the present cases. Until he is arraigned on the murder charge, no problem of double jeopardy can arise.

We also find no error in denial of defendant's motions for nonsuit. There was ample evidence from which the jury could find that on the day the crimes were committed defendant drove in an automobile to the scene of the crime with the three men who actually committed the offenses; that while these men were actively engaged in breaking and entering the house and stealing property therefrom, defendant remained close by in the automobile, driving up and down the road in front of the house and keeping the automobile's motor running; and that as the three men left the house, one carrying the stolen money box, the defendant drove the automobile back on the road to a point near the front of the house, where he was stopped by the officers. These findings would support verdicts finding defendant guilty of both charges as an aider and abettor. State v. Curry, 25 N.C.App. 101, 212 S.E.2d 509 (1975).

Nor do we agree with defendant's contention that the larceny count should have been dismissed for fatal variance between the indictment and the proof. It is true that the indictment alleges ownership of the stolen property in Dr. James Johnson, while the evidence is that it belonged to his minor child. The evidence also shows, however, that it was kept in Dr. Johnson's residence, and he had custody and control of the property of his minor children kept therein. He, therefore, had possession, "which was equivalent to a special property therein." State v. Hauser, 183 N.C. 769, 770, 111 S.E. 349, 350 (1922). "The fact that an indictment charges a defendant with larceny of property from a specified person and the evidence discloses that such person is not the owner but is in lawful possession at the time of the offense, does not render the indictment invalid. There is no fatal variance, since the unlawful taking from the person in lawful custody and control of the property is sufficient to support the charge of larceny." State v. Cotten, 2 N.C.App. 305, 308, 163 S.E.2d 100, 102 (1968); accord, State v. Smith, 266 N.C. 747, 147 S.E.2d 165 (1966). The case of State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972), cited by defendant, is distinguishable and does not control on the facts of the present case. In that case the indictment alleged ownership of the stolen property in one Carriker, while the evidence disclosed Carriker's father was the owner. That case did not involve, as the case before us does, the special custodial interest which a parent has in the property of his minor child kept in the parent's residence. We hold that defendant's motion for nonsuit in both the breaking and entering and in the larceny cases were properly denied.

For error in the charge, however, there must be a new trial. In apt time the defendant made written request that the court instruct the jury on the law concerning aiding and abetting. The court did not do so, but instructed the jury as follows:

"Now, members of the jury, for a person to be guilty of a crime, it is not necessary that he, himself, do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit breaking and entering and larceny, each of them is held responsible for the acts of the other done in the commission of the crime of breaking or entering and larceny."

At no place in the charge did the court instruct the jury on the law applicable to one who aids or abets another in the commission of a felony. The court's instruction concerning "acting in concert," which appears to have been taken practically verbatim from the pattern jury instructions, had no application under the evidence in this case.

In State v. Mitchell, 24 N.C.App. 484, 486, 211 S.E.2d 645, 646-47 (1975), Clark, J., speaking for this Court said:

"A participant in the commission of a felony may be a principal in the first degree or a principal in the second degree. A person who actually commits the offense or is present with another and does some act which forms a part thereof, although not doing all of the acts necessary to constitute the crime, is a principal in the first degree. One who is actually or constructively present when the crime is committed and aids or abets the other in its commission is a principal in the second degree. Both are equally guilty. State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952); State v. Keller, 268 N.C. 522, 151 S.E.2d 56 (1966). In State v. Allison, 200 N.C. 190, 156 S.E. 547 (1931), the distinction between principals in the first and second degree was characterized as a distinction without a difference, but the distinction is still maintained in recent decisions. See State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680 (1972); State v. Lyles, 19 N.C.App. 632, 199 S.E.2d 699 (1973).

Though ``principals in the first and second degree' have disappeared from courtroom parlance, the trial judge has the burden of recognizing the difference where there is evidence that the defendant and another are associated in the perpetration of the crime charged. If the defendant is present with another and with a common purpose does some act which forms a part of the offense charged, the judge must explain and apply the law of ``acting in concert.' This would constitute a principal in the first degree under common law. If a defendant was actively or constructively present and did no act necessary to constitute the crime but aided and abetted the other in the commission thereof, the trial judge must explain and apply the law of ``aiding and abetting.' This would constitute a principal in the second degree under common law. Too, the evidence may require the judge to charge on both ``acting in concert' and ``aiding and abetting.'"

In the present case, there was no evidence that defendant himself broke or entered the house. On the contrary, all of the evidence discloses that during the entire time the crimes were being committed by others, defendant remained in the automobile. The State's case was based entirely on the theory that defendant aided and abetted in perpetration of the crimes. There was ample evidence that defendant did aid and abet; there was no evidence that he acted in concert. It was error for the court to fail to instruct the jury on the law arising on the evidence in this case, and for this error defendant is entitled to a

New trial.

BRITT and MARTIN, JJ., concur.