State v. Vample

MORRIS, Judge.

Defendants’ assignments of error Nos. 4, 6, 7, 8, 9, 10, 11 and 12 are all directed to the instructions of the court to the jury. We agree with defendants that in some instances the charge could have been more clearly stated. Nevertheless, we are of the opinion that none of the errors assigned by these assignments of error constitute error sufficiently prejudicial to warrant a new trial. If the charge, considered as a whole, presents the law fairly and clearly, there is no ground for reversal, even though some of the expressions, standing alone, may be regarded as erroneous. State v. Humphrey, 13 N.C. App. 138, 184 S.E. 2d 902 (1971).

Assignments of error Nos. 1, 3, 5, and 14 are deemed abandoned, since no exceptions supporting them are brought forward in defendants’ brief and no argument or authority is stated in support of them. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

Defendant Crosby by assignment of error No. 2 contends the court committed prejudicial error in denying his motion for judgment as of nonsuit. If the evidence, considered in the light most favorable to the State, giving the State the benefit of all reasonable inferences, and resolving all doubts in favor of the State tends to establish guilt, then the denial of the motion for nonsuit is proper. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971). The testimony of Glass that he was beaten and robbed and the testimony of Parker that Vample held Glass while he and the others, including Crosby, hit Glass, and that Vample took Glass’s pocketbook is more than sufficient to take the case to the jury as to both defendants.

The thirteenth assignment of error has merit and is sufficient to warrant a new trial for defendant Crosby. It is evidently the State’s contention that defendant Vample participated directly in the beating and robbery of Glass, while defendant Crosby was standing by at least encouraging Vample and with knowledge of what was going on and ready to help Vample if need be. Crosby was, therefore, entitled to an instruction on the law of aiding and abetting.

The evidence concerning defendant Crosby in the case sub judice is susceptible to three inferences on the part of the jury. Crosby was either present and encouraging the robbery, present but silent, or he was not present. The only instructions given by the court concerning aiding and abetting were as follows:

“A person who aids and abets another to commit a crime is guilty of that crime. Now, you must clearly understand that if he aids and abets, whether he actually participates in it, real actively involved, that he would be just as guilty as those that actually struck the blows or grabbed the pocketbook or did some of the other things. If he is along and aids and abets, he would be just as guilty.”

However, mere presence at the scene of the crime is not sufficient to denominate an accused an aider and abettor. It is not sufficient that the accused is aware of the commission of a crime, makes no effort to prevent the crime, or silently acquiesces or intends to render aid if necessary. He must give active encouragement to the perpetrator by word or deed or make known his intention to render aid if necessary. State v. Dawson, 281 N.C. 645, 190 S.E. 2d 196 (1972); State v. Aycoth, 272 N.C. 48, 157 S.E. 2d 655 (1967).

When 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. Madam (X), 2 N.C. App. 615, 163 S.E. 2d 540 (1968). This charge is not sufficient as to aiding and abetting, and for that reason, defendant Crosby is entitled to a new trial.

As to defendant Yample — Affirmed.

As to defendant Crosby — New trial.

Chief Judge Bkock and Judge CARSON concur.