State v. Carrington , 35 N.C. App. 53 ( 1978 )

240 S.E.2d 475 (1978) 35 N.C. App. 53

STATE of North Carolina
v.
Obie CARRINGTON, Jr.

No. 7715SC575.

Court of Appeals of North Carolina.

January 17, 1978.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Thomas F. Moffitt and Asst. Atty. Sandra M. King, Raleigh, for the State.

James V. Rowan and Anthony J. Bocchino, Durham, for defendant-appellant.

ARNOLD, Judge.

I.

Defendant moved to dismiss the indictments charging him with being an accessory after the fact to Arthur Parrish who had earlier been acquitted. The trial court denied the motion, but it excised mention of Parrish from the indictments which also charged defendant with being an accessory after the fact to an unknown black male. Defendant now argues that the action of the trial court denied him his due process rights under both the United States and North Carolina Constitutions. We cannot agree.

The United States Supreme Court has held that an indictment is sufficient if it, "first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974). In applying these two tests to the indictments we find that the trial court did not err in denying defendant's motion to dismiss. Portions of the original indictment charging defendant with being an accessory after the fact of first degree murder demonstrate the clarity of the charge against defendant and allow defendant to plead any conviction in bar of future prosecutions:

"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 19th day of February, 1976, in Durham County Obie Carrington, Jr. unlawfully and wilfully did feloniously give aid and assistance to (Arthur Junior Parrish and) one (other) black male, name unknown, who had unlawfully, wilfully and feloniously killed and murdered Otis Jackson Rigsbee, Jr., during an Armed Robbery of the said Otis Jackson Rigsbee, Jr., at Rigsbee's Liberty Market, 349 West Main St., Durham, N.C. on the 18th day of February, 1975. At the time of the giving of aid and assistance, the defendant knew that (Arthur Junior Parrish and) the aforesaid (other) black male, name unknown, had committed the felony of Murder, by killing Otis Jackson Rigsbee, Jr., while robbing him with dangerous weapons."

The indictment charging defendant with being an accessory after the fact of armed robbery is equally clear.

Defendant argues further that the trial court erred in striking reference to Arthur Parrish. Defendant submits that, under United States v. Dawson, 516 F.2d 796 (9th Cir.), cert. denied sub nom Dawson v. United States, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975), the focal point in questioning the permissibility of a change made in the indictment appears to be whether the change involves a broadening or a narrowing of the charge. However, defendant incorrectly argues that the omission of any reference to Arthur Parrish expands the charge. The State was still required to prove all the elements of accessory after the fact; given the rather elusive evidence available concerning the unknown black male, the State's task was considerably greater when it was required to show that defendant aided and assisted that unknown man.

This court is cognizant of G.S. 15A-923(e), which states that no bill of indictment may be amended. Nothing in that statute or in North Carolina case law defines the term "amendment." Since we must interpret statutes in a manner which would avoid illogical consequences, see, e. g. Helms. v. Powell, 32 N.C.App. 266, 231 S.E.2d 912 (1977), we define "amendment" to be any change in the indictment which would substantially alter the charge set forth in the indictment. No such change was made in the present case.

II.

An assignment of error closely related to the previous one is the alleged error of the trial court in admitting evidence concerning Arthur Parrish, in referring to Arthur Parrish during jury instructions, and in instructing the jury that the defendant had been indicted and charged with aiding, counselling and procuring Parrish and another to kill and rob Jackson Rigsbee, Jr. Evidence about Arthur Parrish was an inevitable part of the trial, and we can find no error in its admission. In its instructions to the jury, the trial court, by necessity, referred to Arthur Parrish.

In reviewing the jury instructions we find error only in the court's reference to defendant's indictment as an accessory before the fact. This error, however, was not prejudicial to defendant inasmuch as he was acquitted of the charges relating to accessory before the fact. Furthermore, in the court's instructions, the jury was repeatedly charged that in order to find defendant guilty of accessory after the fact of murder and of robbery it had to find beyond a reasonable doubt that an unknown black male committed these crimes. Viewing the instructions as a whole they contain no error prejudicial to defendant.

III.

The final assignment of error which we consider is defendant's argument that the trial court erred when, in responding to the jury's request, it reinstructed the jury concerning the charges of accessory after the fact of murder and armed robbery. While the trial court restated the law very briefly, we can find, in construing the full context of the charge, State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied sub nom Sanders v. North Carolina, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed.2d 102 (1976), no error prejudicial to defendant. Defendant's argument that the court erred in failing to instruct on "specific intent" to aid the principal is not supported by North Carolina law. See G.S. 14-7 and cases annotated thereunder.

We have reviewed defendant's other contentions but find in them

No error.

MORRIS and HEDRICK, JJ., concur.