State v. Kendrick , 9 N.C. App. 688 ( 1970 )

177 S.E.2d 345 (1970) 9 N.C. App. 688

STATE of North Carolina
v.
James Leon KENDRICK.

No. 7026SC425.

Court of Appeals of North Carolina.

November 18, 1970.

Atty. Gen. Robert Morgan, by Staff Atty. James L. Blackburn, Raleigh, for the State.

Hamel & Cannon, by Reginald S. Hamel, Charlotte, for the defendant.

BROCK, Judge.

Defendant assigns as error that the trial court denied defendant's motions to dismiss. The testimony of Anderson, the accomplice, was sufficient for submission to the jury upon the issue of aiding or abetting; this assignment of error is overruled.

Defendant assigns as error that the trial court instructed the jury that it could return a verdict of guilty if it was satisfied beyond a reasonable doubt from the unsupported testimony of the accomplice that defendant was guilty. Defendant argues that the unsupported testimony of an accomplice should not support a verdict of guilty. Judge Falls instructed the jury in accordance with the rule of long standing in this state. See State v. Terrell, 256 N.C. 232, 123 S.E.2d 469. This assignment of error is overruled.

Defendant assigns as error that the trial court did not require the jury to find defendant knew of the felonious intent of the perpetrator, or had a felonious intent himself, before it could find him guilty of aiding or abetting in the felony.

There was no substantive evidence, either direct or circumstantial, which would tend to show a physical participation by Kendrick in the breaking or entering the building. The strongest inference that could be drawn from the evidence was that the defendant was standing across the street acting as a lookout. Clearly the evidence tended to show that Kendrick assisted in carrying away the stolen merchandise, but this was handed to him outside of the store by Anderson and Mickles.

Because of this state of the evidence the trial court undertook to submit the case against this appealing defendant (Kendrick) to the jury upon the theory of aiding or abetting in the breaking or entering. However, the instructions given to the jury failed to require a finding by the jury that the aider or abettor shared in the felonious intent of the perpetrator.

"To constitute one a principal in the second degree, he must not only be actually or constructively present when the crime is committed, but he must aid or abet the actual perpetrator in its commission. (Citations omitted.) A person aids or abets in the commission of a crime within the meaning of this rule when he shares in the criminal intent of the actual perpetrator (citations omitted), and renders assistance or encouragement to him in the perpetration of the crime. (Citations omitted.) While mere presence cannot constitute aiding and abetting in legal contemplation, a bystander does become a principal in the second degree by his presence at the time and place of a crime where he is present to the knowledge of the actual perpetrator for the purpose of assisting, if necessary, in the commission of the crime, and his presence and purpose do, in fact, encourage the actual perpetrator to commit the crime. (Citations omitted.)" State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5.

Intent is a mental attitude which seldom can be proved by direct evidence, but must ordinarily be proved by circumstances from which it can be inferred. 2 Strong, N.C. Index 2d, Criminal Law, § 2, p. 481. And in determining the presence or absence of the element of intent the jury may consider the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged. State v. Arnold, 264 N.C. 348, 141 S.E.2d 473.

For prejudicial error in the charge to the jury there must be a

New Trial.

BRITT and HEDRICK, JJ., concur.