State v. Williams , 28 N.C. App. 320 ( 1976 )

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220 S.E.2d 856 (1976) 28 N.C. App. 320
STATE of North Carolina
v.
Larry WILLIAMS.
No. 7520SC664.
Court of Appeals of North Carolina.
January 7, 1976.
*857 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. G. Jona Poe, Jr., Raleigh, for the State.

P. Wayne Robbins and Bruce T. Cunningham, Jr., Carthage, for defendant-appellant.

PARKER, Judge.

In his brief the defendant brings forward but one question. He contends the court erred in charging the jury that the defendant could be found guilty if the jury should find either that he committed the offenses himself or that he aided and abetted others in committing the crimes with which he was charged. In support of this contention he argues, first, that there was no evidence indicating that he rendered aid or encouragement to other perpetrators of the crime, and second, that since no co-defendants were tried with him, the court should not have charged the jury that he could be found guilty of aiding and abetting other unknown persons. As to the first argument, the evidence of defendant's own statement to the officer would show that he accompanied his friends to the vicinity where the offenses were committed, that he even obtained and furnished the automobile which carried them there, that he waited in the car while they broke into the school and until they returned with the stolen property, that he assisted them in spraying paint on the stolen machines, and that he accompanied *858 them while they attempted to pawn one of the machines. This evidence was amply sufficient to warrant the court in instructing the jury that they might find defendant guilty as an aider and abettor. "To be guilty as an aider and abettor, a defendant's actual presence is not necessary as he may be constructively present." State v. Torain, 20 N.C.App. 69, 70, 200 S.E.2d 665, 666 (1973). One who, with knowledge that another intends to commit a crime, accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in the vicinity for the purpose of aiding or abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon the completion of the offense, is a principal in the second degree and equally liable with the actual perpetrator. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971).

As to defendant's second argument, it is not necessary that the actual perpetrators of the crime be tried and convicted, or even named in the indictment, before the one who aided and abetted can be tried and convicted. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973).

We find no error in the trial. However, we note that by judgment entered the defendant was sentenced as a committed youthful offender for the term of not less than four nor more than five years. The imposition of a minimum and maximum sentence appears inconsistent with G.S. 148-49.8, State v. Satterfield, 27 N.C.App. 270, 218 S.E.2d 504 (1975) and with G.S. 148-49.4 which deals with the sentencing of a youthful offender and which provides that "[a]t the time of commitment the court shall fix a maximum term not to exceed the limit otherwise prescribed by law for the offense of which the person is convicted." (Emphasis added.). Accordingly, the judgment entered is vacated and this case is remanded for imposition of a sentence consistent with Article 3A of G.S. Ch. 148.

Vacated and remanded.

HEDRICK and ARNOLD, JJ., concur.