State v. Logan , 25 N.C. App. 49 ( 1975 )

MORRIS, Judge.

Defendant’s first assignment of error relates to the denial of his motion for judgment as of nonsuit at the close of the State’s evidence. Under the rationale of State v. Aycoth, 272 N.C. 48, 157 S.E. 2d 655 (1967), defendant contends it was error to deny his motion. We disagree.

“By introducing testimony at the trial, defendant waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State’s evidence.” State v. Davis, 24 N.C. App. 683, 211 S.E. 2d 849 (1975), citing State v. Mull, 24 N.C. App. 502, 211 S.E. 2d 515 (1975), and State v. McWil-liams, 277 N.C. 680, 687, 178 S.E. 2d 476 (1971) ; G.S. 15-173. Defendant did not renew his motion for nonsuit at the close of the State’s evidence. Nevertheless, pursuant to G.S. 15-173.1, we have reviewed the sufficiency of the State’s evidence to go to the jury. Considering the evidence in the light most favorable to the State, we conclude there is sufficient evidence from which a jury could find defendant aided and abetted Wright in the commision of the offense charged.

“One who advises, counsels, procures, encourages or assists another in the commission of a crime is an aider and abettor. (Citations omitted.)

‘A person aids and abets when he has “that kind of connection with the commission of a crime which, at common law, rendered the person guilty as a principal in the second degree. It consisted of being present at the time and place, and in doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.” ’ (Citations omitted.) State v. Beach, 283 261, 266-267,196 S.E. 2d 214 (1973).

“ . . . One who procures or commands another to commit a felony, accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinty for the purpose of aiding and 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, 158, 184 S.E. 2d 866 (1971), and cases cited therein.

“ . . . 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, 414, 70 S.E. 2d 5 (1952), and cases cited therein.

We find the case of State v. Aycoth, supra, distinguishable from the case at bar. As we have found sufficient evidence from which the jury could find defendant aided and abetted Wright in the commission of the armed robbery, defendant’s first assignment is overruled.

In his only other assignment of error, defendant contends the trial court erred in its charge by not defining the term “aiding and abetting”. An examination of the record reveals that the trial court instructed the jury only that “a person who aids and abets another to commit this crime of armed robbery is guilty of that same crime himself”. The trial court did not define aiding and abetting, nor did it state that mere presence at the scene of the crime is not enough to constitute aiding and abetting. State v. Birchfield, supra, and cases cited therein. In our opinion this assignment of error has merit and is sufficient to warrant a new trial for the defendant. As we stated in State v. Vample, 20 N.C. App. 518, 201 S.E. 2d 694 (1974), “[w]hen the State presents evidence tending to show defendant might have aided and abetted, it is incumbent upon the trial court to explain the principles of aiding and abetting which apply to the particular evidence in the case.” State v. Vample, supra, at p. 522, citing State v. Madam (X), 2 N.C. App. 615, 163 S.E. 2d 540 (1968). Here, the charge was not sufficient as to aiding and abetting, and for that reason, defendant is entitled to a new trial.

New trial.

Judge Arnold concurs. Judge Britt dissents.