State v. Spencer

197 S.E.2d 232 (1973) 18 N.C. App. 499

STATE of North Carolina
v.
Leslie SPENCER.

No. 732SC317.

Court of Appeals of North Carolina.

June 21, 1973.

Atty. Gen. Robert Morgan, by Sp. Counsel Atty. Gen. Ralph Moody, Raleigh, for the State.

McMullan, Knott & Carter, by W. B. Carter, Jr., Washington, for the defendant.

BROCK, Judge.

We find no merit in defendant's argument that the evidence shows he was a mere bystander and did not aid and abet in the commission of the homicide. In our view, the trial judge properly submitted the case against defendant to the jury upon the theory of aiding and abetting.

However, the conviction of the principal has been vacated by an order for a new trial. Therefore, a new trial as to this defendant must also be ordered. The defense asserted by Respess Spencer was that in killing the deceased he was acting in self-defense and in defense of his brother Leslie Spencer. Leslie Spencer was found guilty solely upon the grounds that he aided and abetted Respess Spencer. Therefore, if Respess Spencer is not convicted upon his new trial, Leslie Spencer should not stand convicted. State v. Gainey, 273 N.C. 620, 160 S.E.2d 685. It follows that the prejudicial error in the trial of Respess Spencer constituted error prejudicial to this defendant.

New trial.

BRITT and PARKER, JJ., concur.