State v. Hunter ( 1976 )

227 S.E.2d 535 (1976) 290 N.C. 556

STATE of North Carolina
v.
Harry HUNTER.

No. 44.

Supreme Court of North Carolina.

September 1, 1976.

Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., John M. Silverstein, Raleigh, for the State.

Griffin & Humphries by James E. Griffin, Charles D. Humphries, Monroe, Robert M. McInnis, North Myrtle Beach, S. C. (on brief, from North Myrtle Beach, South Carolina) and Sam J. Ervin, Jr., Morganton, for defendant.

COPELAND, Justice.

Defendant contends that the court erred in not permitting James M. Long of the South Carolina Bar to represent Hunter at the trial. He says that this action of the trial court denied him his right to counsel under the Sixth and Fourteenth Amendments. As authority for this position he cites United States v. Johnston, 318 F.2d 288 (6th Cir. 1963) and United States v. Bergamo, 154 F.2d 31 (3d Cir. 1946). The present case is distinguishable from these cases on the basis of its facts.

Defendant was ably represented by local counsel in Union County, Mr. James Griffin, as well as by a South Carolina attorney by the name of Mr. Ralph Stroman, who normally handled defendant's business affairs. On 18 August 1975, the date set for the trial of this case, defendant made a motion to admit counsel James M. Long to appear in the case. The trial judge made an exhaustive inquiry, and it was determined that Mr. Long was the solicitor (chief prosecuting attorney) for the Fifteenth Judicial Circuit in South Carolina, which included Horry County, in which Myrtle Beach is located. § 1-255 of the Code of Laws of South Carolina (1962) provides:

"The solicitors may defend any persons brought to trial before any criminal courts of this State when their duty shall not require them to prosecute such persons and their assistance shall not be required against such persons by the Governor or Attorney General."

Long told the trial court that he had been retained by defendant on 5 May 1975, after having been informed by District Attorney Lowder of Union County that a bill of indictment had been returned against Hunter in Union County. Mr. Stroman had been contacted by the defendant about this matter several days before Mr. Long was contacted. Mr. Griffin was retained by defendant about 1 June 1975.

District Attorney Lowder told the trial court that Mr. Long had originally been requested to assist him in the arrest of Mr. Hunter but he received no help from Mr. Long. In fact, Long assisted Hunter in making bond on the murder charge.

Sometime after Long was retained, criminal charges were brought against defendant Hunter in Long's district. Long indicated that these cases were being handled by his assistants. The Attorney General of South Carolina filed a writ in the Supreme Court of South Carolina to restrain Mr. Long from participating in South Carolina in cases involving defendant Hunter. After Mr. Long explained that his assistants were handling the prosecution in South Carolina and that he was totally removed from the South Carolina prosecution, the matter was withdrawn by the Attorney General. At the time of this motion, however, the matter was still before Chief Justice Lewis of the Supreme Court of South Carolina.

It is well settled that an out-of-state attorney has no absolute right to practice law in another forum. It is permissive and subject to the sound discretion of the Court. Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957), cert. denied, 355 U.S. 958, 78 S. Ct. 544, 2 L. Ed. 2d 533 (1958); Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950); Parker v. Parker, 97 So. 2d 136 (Fla.App.1957); State v. Kavanaugh, 52 N.J. 7, 243 A.2d 225 (1968), cert. denied, 393 U.S. 924, 89 S. Ct. 254, 21 L. Ed. 2d 259 (1968); Manning v. Railroad, 122 N.C. 824, 28 S.E. 963 (1898); Smith v. Brock, 532 P.2d 843 (Okl.1975); 7 Am.Jur.2d, Attorneys at Law, § 10 (1963 and Cum.Supp. June 1976); 7 C.J.S. Attorney and Client § 15b (1937 and Cum.Supp. 1976).

G.S. 84-4.1 (1975 and 1975 Supp.) gives the conditions that must be met by out-of-state attorneys in order for them to be admitted to practice for limited purposes in North Carolina. Subsection 6 thereof states:

"Compliance with the foregoing requirements shall not deprive the court of the discretionary power to allow or reject the application."

Our Court in Manning v. Railroad, supra, 122 N.C. at 828, 28 S.E. at 964 had this to say concerning nonresident counsel:

"[T]he appearance of such counsel is a matter of courtesy in each and every case, and on motion in each case, and only for the occasion on which it is allowed. The statute forbids the courts from allowing non-resident counsel (when citizens of other States and not holding license from this Court) from practicing habitually in our courts, and they cannot acquire the right to do so."

In Smith v. Brock, supra, Oklahoma considered a rule of practice analogous to our G.S. 84-4.1. The foreign attorney had in the past engaged in disorderly and disruptive tactics in both the Oklahoma and Texas Courts. The Oklahoma Court declined to permit the out-of-state counsel to appear. The Oklahoma Supreme Court relied in part on State v. Kavanaugh, supra, wherein that court rejected Mr. F. Lee Bailey's contention that the defendant had a constitutional right to select an attorney who was not a member of the New Jersey Bar. In denying his right to appear, the New Jersey and Oklahoma Supreme Courts quoted with approval the following from Thomas v. Cassidy, supra:

"`It is well settled that permission to a non-resident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge. [Cases cited.]'" Smith v. Brock, supra at 848.

The Oklahoma Supreme Court in Smith v. Brock, supra at 850, also quoted with approval the following statement made in Cooper v. Hutchinson, supra at 122:

"The narrower question here is the extent to which an accused persons choice of counsel is a constitutional right. The argument insists that there is a constitutional right, at least in a capital case, to whatever counsel an accused person pleases to have. If that counsel is not a member of the bar of the state where the prosecution is being conducted, still, the argument runs, the accused may effectively choose him just as freely as he could choose a lawyer admitted to practice locally. The person chosen by the accused may then insist upon conducting the defense in the local courts. Control by the states over the persons who may be licensed to practice law in their courts would thus be greatly diminished in every capital criminal prosecution where the accused desires counsel from somewhere else.

"The length to which this argument takes one is startling. It has always been thought that the license to practice law is limited, except as a matter of grace, to persons who had fulfilled the local requirements for practice."

From the very beginning it is clear that Mr. James E. Griffin would be the lead counsel in the case. It is well known that Mr. Griffin is one of the leading trial attorneys in Union and surrounding counties. The District Attorney made it clear to Mr. Griffin approximately 1 June 1975 that he would object to having Mr. Long appear in the case on behalf of defendant. The trial judge permitted Mr. Stroman, defendant's personal attorney in Horry County, South Carolina, to appear with Mr. Griffin. Certainly under this set of facts, defendant cannot contend he was prejudiced by the court's decision. His constitutional right to counsel was not abridged.

It is interesting to note that the 1976 South Carolina General Assembly (recently adjourned) required all solicitors to serve as full-time employees for the State of South Carolina effective 1 January 1977, but those in office on 1 July 1976 whose terms expired in 1979 were not required to comply during their terms. "An Act . . . To Provide That Solicitors In This State Shall Be Full Time Beginning January 1, 1977 And To Provide Exceptions. . . ." R 819, S 785. Approved the 30th day of June, 1976.

The decision of Judge Rousseau was made solely in his discretion. He acted wisely and properly to insure compliance with Canon 9 of the Code of Professional Responsibility of the North Carolina State Bar (G.S. Vol. 4A (Cum.Supp.1975)), which states:

"A Lawyer Should Avoid Even the Appearance of Professional Impropriety." See DR9-101(B).

Canon 5 of the Code of Professional Responsibility states:

"A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client." See DR 5-105.

Additionally our law makes it a crime for a full-time district attorney to practice law. G.S. 84-2 (1975). This assignment of error is overruled.

Under the second assignment of error, defendant contends that the court erred in denying the motion of defendant to continue the case in order to permit defendant to employ additional counsel.

When this motion was made, Mr. Griffin stated that it was "to allow Mr. Hunter to obtain other counsel if he so desires." There was no indication or allegation that the defendant even wished to obtain another lawyer or that other counsel was necessary to adequately prepare the defense. In fact, defendant's counsel, Mr. Griffin, declined to argue this motion. As previously noted, Mr. Griffin had been aware for more than two and one-half months that the District Attorney would object to Mr. Long's appearance in the case. It is apparent from the foregoing that defendant had ample time to arrange for the services of another attorney in addition to Mr. Stroman and Mr. Griffin if he so desired.

The constitution guarantees that the defendant and his counsel shall have a reasonable time to prepare the case for trial. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964), cert. denied, 377 U.S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052 (1964); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962); State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949). The right to the assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and by Article 1, §§ 19 and 23 of the North Carolina Constitution. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972), cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499 (1972). However, under the facts of this case, we do not believe any substantial issue concerning these constitutional guarantees is even involved. Certainly, defendant has not been prejudiced by the court's failure to continue the case for this purpose. The motion for continuance was properly denied. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1976); State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948). The assignment of error is overruled.

Under Assignments of Error 9-13, 16, 17, 19, 20, 25-32, 34-36, 38-40, defendant contends the court erred in admitting evidence of other offenses committed by the defendant.

As a general rule, in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. However, this rule is subject to certain well recognized exceptions. In the landmark case of State v. McClain, 240 N.C. 171, 176, 81 S.E.2d 364, 367 (1954), the sixth exception which we will subsequently discuss, is stated as follows:

"6. Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. [Citations omitted.] Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity."

As stated in McClain, for a determination of whether evidence of other distinct crimes properly falls within any of the recognized exceptions, "[t]he acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. . . . Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected." State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807 (1923); accord, State v. McClain, supra, 240 N.C. at 177, 81 S.E.2d at 368; State v. Gregory, 191 S.C. 212, 221, 4 S.E.2d 1, 4 (1938). In borderline cases the courts scrutinize whether the probative value of the evidence outweighs the undue prejudicial effect that may result. 22A C.J.S. Criminal Law § 683 (1961).

Defendant specifically objects to the State's evidence showing that the defendant was an accessory before the fact to crimes involving breaking and entering with intent to commit larceny, these crimes being committed (1) by Devine and Watkins at the home of Tony Thompson in Myrtle Beach on 21 July 1974, (2) by Duncan, Devine, and Watkins at the Atlas Construction Company in Myrtle Beach on 30 August 1974, and (3) by Duncan, Devine, and Watkins at the home of Allison Davis in North Myrtle Beach on 19 December 1974.

The admission of the testimony to which defendant objected concerning the breaking, entering, and larceny of the Atlas Construction Company cannot be regarded as prejudicial because testimony of like import was thereafter admitted without objection when Richard Mears was testifying for the State. State v. Swift, 290 N.C. ___, 226 S.E.2d 652 (1976); State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). See also State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975); State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975). Defendant's contention that there was no requirement for him to object to the testimony of Mears on this subject because he made a "line objection" within the meaning of G.S. 1A-1, Rule 46(a)(1) (1969) is without merit. The rationale behind this rule of civil procedure is persuasive, and we might later determine that the concept of this rule is applicable in an appropriate criminal case, e. g., where the trial judge sanctions the use of such continuing objections. However, this rule provides that "when there is objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning." Defendant has merely taken general objections. At no time has he made an objection to a specified line of questioning so as to bring himself within the scope of the rule by asserting, for example, that the line of questions involves testimony irrelevant for stated reasons. See generally 1 Stansbury's N.C.Evidence, § 30 (Brandis Rev.1973).

The admission of the evidence as to the breaking, entering, and robbery of the empty safe at the Tony Thompson home and the breaking and entering with intent to steal the money in the safe at the Allison Davis home was, under the acid test enunciated in State v. McClain, supra, logically relevant for the purpose of proving the defendant's participation as an accessory before the fact to the murder of Potts in the attempted armed robbery. The defendant's participation as an accessory before the fact was a material fact in issue. In fact, this was the crucial issue going to the heart of defendant's defense.

Scrutiny of this evidence shows that it was admissible under the sixth exception to the general rule stated in State v. McClain, supra. Evidence of these offenses in context with other evidence showing the relationship of the defendant with the other men involved tended to establish a common plan or scheme embracing the commission of a series of larcenies so related to each other that proof of these other crimes tended to prove the crime charged and to connect the accused with its commission.

Evidence of these collateral crimes was relevant to show that, in fact, the defendant was aiding, counseling, and assisting the same group of men to serve as the instrumentalities by which the defendant profited from the larcenous scheme he concocted. The collateral crimes and the principal crime were connected by the following facts: (1) that the situs of the crimes and residences of the defendant were in close proximity (place), (2) that they occurred within a seven-month period during which the defendant and the other men were continuously in close contact (time), (3) that they were committed for the purpose of larceny (type of crime), (4) that the defendant counseled essentially the same principals, was familiar with the targets involved, and provided the same kind of information for all of the crimes (method), (5) that essentially the same principals at the situs involved committed the crimes (principals).

A detailed analysis of the facts in this case shows that the defendant provided Watkins with the same kind of counsel and information for the Thompson and Davis crimes as he had provided to him for the Potts and Atlas Construction Company crimes. The defendant also provided Devine the same kind of counsel and information for the Thompson crime as he had provided to him for the Potts and Atlas Construction Company crimes. The evidence further indicated that Duncan was similarly informed by the defendant as to the Potts and Atlas Construction crimes. Furthermore, other evidence showing the kind of relationship that the defendant, Duncan, Devine, and Watkins had, indicated that all of them participated with the defendant in the planning of all these crimes. The defendant, Duncan, Devine, and Watkins were in close contact with each other during this seven-month period, and they were continually pursuing a common plan or scheme to commit larceny in areas in close proximity to the homes of the defendant and about which he was familiar and provided them information. On the night of the Atlas Construction Company larceny or immediately afterwards, the defendant began his discussions with Devine concerning the robbery of Mr. Potts and a Mr. Cato, who lived nearby in Pageland, South Carolina.

Other evidence showed that Devine and Watkins were principals at the situs of all the crimes. Duncan was a principal at the situs of the crimes committed against the Atlas Construction Company and Davis. Evidence of the principal crime and the collateral crimes showed that the residences of the defendant were used as places to meet for purposes of planning as well as for purposes of distributing any proceeds owed to the defendant or making a rendezvous in case of trouble.

In State v. Grace, supra, we held concerning that robbery case that the challenged evidence relating to three previous robberies of similar establishments by the same persons and by the use of the identical pistol in the hands of the defendant on each occasion was admissible under the sixth exception to the general rule set forth in State v. McClain, supra. The same principle applies in our case and renders the evidence of the collateral offenses admissible. See also State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Christopher, 258 N.C. 249, 128 S.E.2d 667 (1962); 22A C.J.S. Criminal Law § 683 (1961). The facts in State v. Grace, supra, concerned a principal at the situs rather than an accessory before the fact and the evidence of similar crimes might also have been applicable on the question of identity. Still the cases are similar in that for each crime the role and identifying characteristics of the defendant remained the same and thus tended to show the defendant's role in the principal crime.

These assignments of error are overruled.

Under assignments of error 41 and 42, defendant contends that the trial court erred in allowing the jury to view, and admitting into evidence, slides of the victim's wounds.

The record indicated that the trial court denied introduction into evidence of photographs but permitted the jury to view several slides on a screen in the courtroom, giving the following proper instruction:

"These photographs, or slides, are introduced for the purpose of illustrating the Doctor's testimony, if you find that it does illustrate his testimony, and for no other purpose. They are not to be considered by you as substantive evidence, but only for the purpose of illustrating the Doctor's testimony, if you find that it does illustrate his testimony."

After this instruction was given, the doctor explained what each slide portrayed as the picture was shown on the screen. There were only 6 of these, one of the chest, one of the upper chest and face, one of the back, one of an arm, and two close-ups of the entrance wound in the chest. Each showed wounds received and appeared to be relevant upon the question of the cause of death. Under the circumstances, the fact that the slide photographs depicted a gruesome or gory spectacle does not render them inadmissible. State v. Williams, 289 N.C. 439, 222 S.E.2d 242 (1976); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972), death penalty vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295 (1972).

Under Assignment of Error No. 46, defendant contends the court erred in denying his motion for a nonsuit.

In considering this question, the evidence must be considered in the light most favorable to the State, and the State must receive the benefit of every inference that can reasonably be drawn therefrom. 2 Strong, N.C. Index 2d, Criminal Law, § 104 (1967 and March, 1976, Supp.)

To convict the defendant of being an accessory before the fact the State must prove (1) that the defendant counseled, procured, commanded, encouraged, or aided another to commit the offense; (2) the defendant was not present when the crime was committed; and (3) the principal committed the crime. State v. Branch, supra; State v. Bass, 255 N.C. 42, 120 S.E.2d 580 (1961).

Defendant does not contest the fact that the evidence shows that he was not present when the crime was committed and that the principal committed the crime. Furthermore, although defendant argues otherwise, there is plenary direct as well as circumstantial evidence showing that he counseled, procured, commanded, encouraged, or aided Devine, Locklear, and Watkins to commit the offense.

The defendant told Devine that Mr. Potts of Union County kept a substantial amount of money on him or in his possession that they could steal. He also discussed Mr. Potts and the available money with Watkins and told Watkins he would help set it up for them.

When the defendant asked Devine to trade guns, Devine told the defendant that he would be laughed at if he tried armed robbery with a .25 Colt Automatic. The defendant informed Devine, Watkins, and Duncan that he planned to have the larceny occur while the Potts dined at his house, but later he indicated to Watkins that they would have to catch Mr. Potts at his home because the defendant did not know where the money was. The defendant showed Devine, Locklear, and Watkins where the Potts' home was. He told Devine and Watkins to come back to his house after the "job." It was understood that Hunter was to get twenty-five percent of the money stolen.

The above evidence, especially as supported by the defendant's admissions as testified to by Mears and the additional evidence indicated in the statement of facts, is more than ample to overcome the motion for nonsuit. This assignment is without merit and overruled.

Under Assignments of Error Nos. 47 through 54, defendant contends the trial court did not declare and explain to the jury the law arising on the evidence in the case as required by G.S. 1-180 (1969).

Defendant complains that two sentences of the court's instructions as to the elements of the crime that the State must prove in order for the jury to find him guilty failed to inform the jury that such proof must be shown by evidence establishing the enumerated elements beyond a reasonable doubt. Defendant's argument rests solely on the fact that the words "beyond a reasonable doubt" are not used in the two sentences. Defendant totally overlooks the fact that at the beginning of the charge the trial court stated that defendant "is presumed to be innocent, and the State of North Carolina must prove to you that the defendant is guilty beyond a reasonable doubt." The court then gave a complete definition of reasonable doubt. Moreover, when first listing the initial elements of the crime, the court specifically required the proof to be beyond a reasonable doubt. Similarly, at the conclusion of the charge when reciting all the elements of the crime, the court again specifically required that the proof be beyond a reasonable doubt. Finally, the court concluded, "However, if you do not so find or have a reasonable doubt as to one or more of those things, it would be your duty to return a verdict of not guilty." A charge must be read contextually, and when this is done, it is manifest that the jury understood that each element had to be proved by evidence establishing the same beyond a reasonable doubt. State v. Branch, supra; State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971). This contention of defendant is without merit.

Defendant argues that the court erred in falling to charge the jury that in order to find the defendant guilty as an accessory before the fact to murder, the counseling of the principal by the defendant must have had an immediate causal connection to the commission of the crime by the principal. Since, in effect, this is precisely what the charge of the court required, defendant's argument is without merit. In this case, the trial court adequately stated the three essential elements that must concur in order to justify conviction of the defendant as an accessory before the fact: (1) he must have counseled, procured, commanded, or knowingly aided Billy Devine to attempt to commit armed robbery; (2) he must have not been present when the killing and attempted armed robbery occurred; and (3) the principal, Billy Devine, murdered William Benjamin Potts while attempting to commit armed robbery. State v. Branch, supra; State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970); State v. Bass, supra; G.S. 14-5 (1969). Inherent in the first element as charged by this court is the requirement that the counsel, procurement, command or aid have a causal connection to the commission of the crime. Otherwise, there would be no real counsel, procurement, command, or aid. That the trial court in fact required an immediate causal connection is most clearly shown by the final mandate of the trial court. The court charged that the jury must find the defendant not guilty unless they found that "before the killing was committed the defendant, that is, Harry Hunter, pointed out the Potts residence and store to Billy Devine and told Billy Devine Mr. Potts had a large sum of money and told him that he couldn't locate the money and that he would have to rob Mr. Potts when he was at home, and that the defendant was to get part of the money, and that in so doing the defendant, Harry Hunter, counseled or procured, or commanded or knowingly aided Billy Devine to attempt to commit armed robbery and that the defendant was not present at the time of the killing. . . ." Since there was no special request for the particular instruction that defendant now believes should have been given, since such an instruction was in effect given, and since the question of the causal connection herein raised was not disputed or in issue under the evidence of the case (the central issue being whether the defendant counseled, procured, or commanded the principal at all), there can be no prejudice to defendant. See generally State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Cole, 270 N.C. 382, 154 S.E.2d 506 (1967) (discussed herein).

Defendant maintains that the charge failed to require the jury to find that the defendant and Devine entertained the common design that Devine take money from the person or presence of the deceased by violence or intimidation and that the taking was to be done with a felonious intent. The above recitation of part of the final mandate shows that the trial court in fact required the jury to find that the defendant told Devine "that he would have to rob Mr. Potts when he was at home, and that the defendant was to get part of the money." Defendant's position is without merit because the charge that he now urges should have been given was in essence given.

Defendant asserts that the court's summary of the evidence when instructing on the law was prejudicial to defendant because it ignored and excluded evidence given by the slayer, Devine, which was favorable to defendant. This evidence was the testimony of Devine that the defendant planned for the larceny to occur while he had the Potts over to his house for dinner and the fact that Devine never testified definitely whether these plans were later changed to contemplate a robbery while the Potts were at their home. In fact, the trial court included this testimony in its recapitulation of evidence although it did not underscore the testimony that was not given. Moreover, the court omitted the testimony of Watkins favorable to the State that the defendant "changed his mind, and [said] we'd have to catch him at his home because he didn't know where the money was." Certainly, in the absence of a request for an addition to the court's recapitulation of the evidence, defendant cannot successfully maintain that there is reversible error. State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973); State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967). The jury was properly instructed that it was "to decide from the evidence which you have heard what the facts are." Moreover, the final mandate to the jury that they find (from circumstantial evidence impliedly) that the defendant told Devine "that he would have to rob Mr. Potts when he was at home" placed an even greater burden on the State then required by law. If the jury determined that a conspiracy existed, it clearly would have been adequate for purposes of convicting the defendant that he have told this to Watkins and that Watkins passed this information on to Devine. Defendant has failed to show any error prejudicial to him.

Defendant additionally contends that the court failed to charge the essential elements of armed robbery or an attempt to commit armed robbery so the jury could determine (1) whether Devine murdered Potts while committing or attempting to commit an armed robbery upon him and (2) whether the defendant was an accessory before the fact to such murder. He particularly emphasizes the fact that the court failed to charge that an essential element of armed robbery is "a felonious intent" and in some sufficient form explain and define the term "felonious intent."

Although the court should have spelled out the essential elements of the underlying felony of attempted armed robbery in its instructions as to what the State must prove to convict defendant of being an accessory before the fact to felony-murder, his failing to do so was not prejudicial error for the following reasons: (1) the occurrence of the attempted armed robbery by Devine, Locklear, and Watkins was not disputed and thus not in issue under the evidence in the case, (2) defendant failed to specially request instructions on the underlying felony, (3) the court did define "attempted armed robbery" as "attempted robbery with a firearm," and (4) these latter terms were essentially self-explanatory under the circumstances of this case.

Although "reasonable doubt" is not an element of a crime, it is the standard by which all elements must be proved to the jury for defendant to be found guilty. Thus, the jury's understanding of that term is as practically important as the jury's understanding of the elements of the crime. Nonetheless, the trial judge is not required to tell the jury what "reasonable doubt" is unless requested so to do. State v. Rankin, supra; State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971). In part, this is because "[t]he term `reasonable doubt' is more easily understood than defined." State v. Edwards, 286 N.C. 140, 146, 209 S.E.2d 789, 793 (1974). Additionally, this is because the term is essentially self-explanatory, as is also true for the term "attempted robbery by a firearm," especially in a functional sense so far as this jury's decision is concerned because there is no real dispute as to the "felonious intent" or the actual occurrence of the attempted armed robbery and the crime charged is accessory before the fact to murder while attempting armed robbery.

In State v. Cole, supra, we cited with approval the following quotation from 26 Am.Jur., Homicide § 533, at 527 (1940), "[W]here, upon the undisputed facts, it clearly and conclusively appears to a moral certainty that the unlawful act complained of was the proximate cause of death, a failure so to charge, especially where there was no request so to charge, is not reversible error." Our Court held, "There being `no evidence tending to prove that deceased's death was due to some cause other than injuries inflicted by the accused,' an instruction on proximate cause was unnecessary, and especially when there was no request therefor." State v. Cole, supra, 270 N.C. at 387, 388, 154 S.E.2d at 511. This case is an example of the principle that how much the law needs to be explained in the charge depends on the evidence presented.

State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976), is another example of a case where the court's charge on an element of the crime might have raised serious problems but did not where the element complained about was not disputed or in issue under all the evidence. In that case, we stated that the court's charge as to the crime of willful and malicious damage to occupied personal property by means of explosives had portions that were not models of clarity. Defendant contended that the charge only required that there be injury to the person occupying the personal property and did not require that there be injury to the personal property. We determined that when the charge was read contextually, the court's reference to the crime as "damaging personal property, it being occupied at the time, by use of explosives" and its giving to the jury a sheet of paper immediately before they retired repeating the fact that this was the crime involved, prevented there being any prejudicial error. We also noted that "[a]ll of the evidence showed extensive damage to the automobile [the personal property] as well as serious injury to Stout [the person]."

In State v. Vinson, supra, defendant complained in a rape case that the trial judge failed to define "sexual intercourse" and thus failed to charge that rape required penetration by the male organ. The evidence disclosed two completed acts of intercourse, and there was no evidence to the contrary. Justice Huskins, speaking for our Court, said:

"Although defendant's plea of not guilty required the State to prove penetration beyond a reasonable doubt, the defense was not grounded on lack of penetration. Under these circumstances, the term `sexual intercourse' conveyed the idea of completed intercourse, including penetration, and the jury must have so understood." State v. Vinson, supra, 287 N.C. at 342, 215 S.E.2d at 72.

As in the case of State v. Vinson, supra, the element in our case that was not defined, i. e. the attempted armed robbery, was essentially self-explanatory and that element was not disputed and thus not in issue under all the evidence. Defendant Hunter's defense was not grounded on the absence of attempted armed robbery and the murder resulting therefrom. Rather, it was grounded on the contention that he did not participate in the planning of the attempted armed robbery and did not counsel, procure, or command the principals Devine, Locklear, and Watkins to commit the attempted armed robbery.

In State v. Spratt, 265 N.C. 524, 526, 527, 144 S.E.2d 569, 571, 572 (1965), our Court enunciated the principle that while G.S. 1-180 requires the court to "declare and explain the law arising on the evidence," the comprehensiveness and specificality "of the definition and explanation of [the essential element] `felonious intent' required in a charge [on attempted armed robbery] depends on the facts in the particular case." In that robbery case we held that the essential element of taking with "felonious intent" was defined with sufficient comprehensiveness and specificity where the court told the jury, in effect, that before they could return a verdict of guilty, they must find that defendant attempted to take the property with "intent to rob." The Court reasoned:

"`Rob' or `robbery' has a well defined meaning and imports an intent to steal. [Citation omitted.] The word `rob' was known to the common law and the expression `intent to rob' is a sufficient definition of `felonious intent' as applied to the robbery statute, in the absence of evidence raising an inference of a different intent or purpose." Id.

The Court therein quoted with approval the following language:

"`[W]here the defense was an alibi and the evidence developed no issue or contention that the taking was under a bona fide claim of right or was without any intent to steal, the instructions may be upheld notwithstanding a failure to charge in specific terms with respect to an intent to steal.' 77 C.J.S. Robbery, § 49, pp. 514, 515. [Citations omitted.]" Id.

Since in our case defendant was charged with being an accessory before the fact to felony-murder, the need for a full definition of the underlying felony of attempted armed robbery was analogous to the need for a full definition of "felonious intent" in State v. Spratt, supra, where the charge was attempted armed robbery. In both cases, the jury was required to find that all the "central" elements existed, including "an attempted armed robbery" in our case and "a felonious intent" in State v. Spratt, supra. In both cases, however, the court failed to define or charge as to all the inner elements of the central elements of the crimes charged. The fact that in the armed robbery case of State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965) the court did not even charge the jury that in order to convict defendant as a principal, they must find the central element of "felonious intent" distinguishes that case from State v. Spratt, supra, and the present case.

If counsel for defendant had desired further elaboration on the term "armed robbery" or anything else, he should have requested it when the court concluded the instruction and asked counsel to step to the bench. We believe that the trial court has adequately instructed on all the substantial features of the case, and if the defendant desired a more detailed instruction as to any subordinate feature, then counsel should have made an appropriate request. This they failed to do. State v. Vinson, supra; State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Gordon, 224 N.C. 304, 30 S.E.2d 43 (1944); State v. Hendricks, 207 N.C. 873, 178 S.E. 557 (1935); State v. O'Neal, 187 N.C. 22, 120 S.E. 817 (1924).

For the aforementioned reasons, defendant's assignments of error as to the charge are overruled.

Because of the serious nature of the crime for which defendant has been convicted, we have examined all the assignments of error in the record proper and find no prejudicial error.

Defendant was "entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953); accord, State v. Cogdale, 227 N.C. 59, 40 S.E.2d 467 (1946); State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930). A fair trial the defendant has had and we find

NO ERROR.

EXUM, J., concurs in result.

LAKE, Justice (dissenting).

The defendant appeals from a sentence to imprisonment for life for the crime of being an accessory before the fact to a murder committed in the perpetration of an attempt to commit robbery with a firearm. The jury found him guilty of that offense. The evidence fully supports the verdict. There was no prejudicial error in the admission of that evidence. There was, however, error in the failure of the trial judge to instruct the jury as to all the elements of the offense with which the defendant was charged and of which he was convicted. This the trial judge was required to do by GS 1-180.

The judge instructed the jury:

"Now, the defendant was originally charged with murder in the first degree. However, you will not be called upon to find the guilt or innocence of the defendant on this charge, but you will be called upon to find the guilt or innocence of the defendant on a lesser included offense, that is, accessory before the fact of murder in the perpetration of attempt to commit robbery with a firearm, commonly called armed robbery, the meaning of which I will explain to you later on. (Emphasis added.)

* * * * * *

"Now, lady and gentlemen, as I said, the defendant has been accused of accessory before the fact of murder in the perpetration of an attempt to commit robbery with a firearm, which in common language is armed robbery.

"Now, I charge that for you to find the defendant guilty as an accessory before the fact of murder in the perpetration of attempted robbery with a firearm, the State must prove the following things beyond a reasonable doubt. First, the State must prove and prove beyond a reasonable doubt that murder in the perpetration of attempted armed robbery was committed by Billy Devine. Now, in order to find that Billy Devine committed murder in the perpetration of an armed robbery, the State must prove 2 things beyond a reasonable doubt, that is, that Billy Devine shot William B. Potts while committing or attempting to commit armed robbery, and, second, that the shooting proximately caused William Benjamin Potts' death.

* * * * * *

"So I repeat, in order to find the defendant guilty of this charge, you first must find that murder in the perpetration of attempted robbery was committed by Billy Devine, and in order to find that you must find Billy Devine shot Mr. Potts while committing or attempting to commit armed robbery, and that the shooting proximately caused Mr. Potts' death.

"Coming back to what the State must prove, again, that before the crime was committed, the defendant, that is, Harry Hunter, counseled, procured, commanded or knowingly aided Billy Devine to commit or attempt to commit armed robbery. And finally, the State must prove that the defendant was not present when the killing of William Benjamin Potts occurred.

* * * * * *

"Therefore, lady and gentlemen, I charge if you find from the evidence beyond a reasonable doubt that on or about February 7, 1975, Billy Devine committed murder in the perpetration of attempt to commit robbery, that is, that Billy Devine shot William Benjamin Potts while attempting to commit armed robbery and the shooting proximately caused William Benjamin Potts' death and that before the killing was committed the defendant, that is, Harry Hunter, pointed out the Potts residence and store to Billy Devine and told Billy Devine Mr. Potts had a large sum of money and told him that he couldn't locate the money and that he would have to rob Mr. Potts when he was at home, and that the defendant was to get part of the money, and that in so doing the defendant, Harry Hunter, counseled or procured or commanded or knowingly aided Billy Devine to attempt to commit armed robbery and that the defendant was not present at the time of the killing, it would be your duty to return a verdict of guilty of accessory before the fact of murder."

In a charge otherwise free from error the trial judge inadvertently failed to instruct the jury as to the elements of the offense of robbery, the underlying felony which made the killing of Mr. Potts murder.

Since robbery (or attempt to rob) is an essential element of the offense for which the defendant was put on trial, GS 1-180 required the judge to instruct the jury as to the elements of robbery. We may not lawfully assume that this was nonprejudicial error on the theory that everyone knows what robbery is. No such assumption may lawfully be made when a defendant is charged with the crime of robbery itself. See: State v. Logner, 269 N.C. 550, 551, 153 S.E.2d 63 (1967); State v. Fulford, 124 N.C. 798, 32 S.E. 377 (1899). Similarly, no such assumption may lawfully be made when he is charged with a crime of which robbery is an essential element.

"A correct charge is a fundamental right of every accused." State v. Orr, 260 N.C. 177, 181, 132 S.E.2d 334, 337 (1963). As Justice Barnhill, later Chief Justice, said in State v. Friddle, 223 N.C. 258, 261, 25 S.E.2d 751, 753 (1943), "The chief object contemplated in the charge of the judge is to explain the law of the case, to point out the essentials to be proved on the one side and on the other, and to bring into view the relation of the particular evidence adduced to the particular issue involved." GS 1-180 confers upon litigants, including defendants charged with crime, a substantial legal right to have the jury instructed as to the law upon all substantial features of the case. State v. Everette, 284 N.C. 81, 199 S.E.2d 462 (1973); State v. Brady, 236 N.C. 295, 72 S.E.2d 675 (1952); State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53 (1950). The judge must charge the jury as to what constitutes the essential elements of the offense for which the defendant is brought to trial. State v. Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956).

To convict the defendant of the offense of being an accessory before the fact to a murder committed in the perpetration of an attempt to commit robbery, the jury would have to find that the killing was committed in the course of an attempt to commit robbery. To so find, the jury would have to know what constitutes robbery. The instructions given the jury do not contain any definition of that offense.