State v. Jacobs

MORRIS, Chief Judge.

Defendant Anson Jacobs argues three assignments of error. Defendant Hamp Jacobs presents seven assignments, four of which are brought forward. We will first consider the contentions of the defendant Hamp Jacobs, then those of codefendant Anson Jacobs.

Defendant Hamp Jacob’s Appeal

We call defendant’s attention to the requirements of the North Carolina Rules of Appellate Procedure. Rule 28(b)(3) requires that in appellant’s brief each question shall be separately stated, followed immediately by a reference to the assignments of error and exceptions pertinent to the question identified by the pages of the Record on which they appear. The fact that we consider the questions on their merit rather than dismissing the appeal is not to be taken as any indication that counsel can expect this charitable treatment in the future.

Defendant argues that the court committed prejudicial error in allowing the state to join his case for trial with that of Anson Jacobs, because the state’s motion for joinder came too late. He asserts, citing the case of State v. Moore, 41 N.C. App. 148, 254 S.E. 2d 252 (1979), that the motion was required to have been made at arraignment.

Defendants were charged with crimes of the same class, growing out of the same criminal transaction. Consolidation of the trials was proper. State v. Mourning, 4 N.C. App. 569, 167 S.E. 2d 501 (1969). The motion for joinder made at the beginning of trial was also in apt time. See State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976). Moore is inapposite, as it dealt with joinder of cases pending against the same defendant and is not authority for the proposition that a motion to consolidate the trials of more than one defendant must be made at arraignment.

Defendant next contends that the court erred in submitting to the jury the issue of his guilt over motion to dismiss, as there was insufficient evidence of his commission of the offenses charged. He maintains that no evidence was adduced to show that anyone but John Haskett fired on the Pinto station wagon, but Raymond Graham, Jr.’s testimony belies that position. Moreover, a defendant who enters into a common design for a criminal purpose is deemed a party to every act done by others in furtherance of such design. State v. Lovelace, 272 N.C. 496, 158 S.E. 2d 624 (1968). The trial judge charged that

for a person to be guilty of a crime, it is not necessary that he himself do all of the things necessary to constitute the crime.

If two or more persons act together with a common purpose to commit an assault with a deadly weapon with intent to kill inflicting serious injury, or to discharge a firearm into an occupied vehicle, each of them is held responsible for the acts of the other done in the commission of the assault with a deadly weapon with intent to kill inflicting serious injury, or discharging a firearm into an occupied vehicle.

There was plenary evidence that Hamp Jacobs joined Haskett in arranging the meeting at the Tram Road, carrying guns to the place of ambush, and lying in wait, and that he fired the initial shot. Though the evidence suggests that Haskett actually wounded James Graham, defendant could be found equally guilty of the shooting. See State v. Smith, 221 N.C. 400, 20 S.E. 2d 360 (1942). The motion to dismiss was properly denied and the case correctly submitted to the jury

Defendant argues that the court erred in its instruction on reasonable doubt.

The court stated:

. . . the burden is on the State to satisfy the jury from the evidence and beyond a reasonable doubt of their guilt.

A reasonable doubt is not a mere possible doubt, for most things that relate to human affairs are open to some possible or imaginary doubt.

A reasonable doubt is a fair doubt based on reason and common sense generated by the insufficiency of the evidence.

Defendant asserts that the instruction does not allow for the possibility that a reasonable doubt could be engendered by the evidence presented, only by the absence thereof.

It is well settled that the failure of a trial judge to define the term “reasonable doubt”, absent a request, is not error, State v. Potts, 266 N.C. 117, 145 S.E. 2d 307 (1965); and “if he undertakes the definition he is not limited to the use of an exact formula.” State v. Shaw, 284 N.C. 366, 374, 200 S.E. 2d 585, 590 (1973). A definition that is in substantial accord with previously approved definitions will be deemed sufficient. Id. We call defendant’s attention to State v. Brackett, 218 N.C. 369, 11 S.E. 2d 146 (1940), in which the Court held an instruction that referred to doubt “generated by insufficiency of proof’ to be in substantial compliance with its decisions and without error. We hold that the trial judge’s use of the phrase “generated by insufficiency of the evidence” renders his charge virtually identical to the instructions in Brackett and that it encompasses failure to prove guilt not only by the absence of inculpatory evidence, but by lack of persuasiveness of the evidence presented. In other words, the charge, when read as a whole, fully and fairly stated the law.

Defendant urges upon us the view that the court committed error in its charge by merging two “incompatible” offenses and giving inappropriate instructions regarding common purpose. Defendant was convicted of felonious assault with a deadly weapon inflicting serious bodily injury, and of discharging a firearm into an occupied vehicle. Defendant does not explain upon what basis he considers the offenses incompatible, nor can we divine his reasoning.

The judge’s instructions concerning common purpose were entirely appropriate. One may be found guilty of an offense if he was present at the scene of the crime and the evidence shows that he was acting together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Cox, 303 N.C. 75, 277 S.E. 2d 376 (1981), State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). Defendant complains that the trial judge failed to instruct the jury that “mere presence of a person at the scene of a crime is not enough to constitute aiding and abetting, or acting in concert.” There is nothing in the record to indicate that defendant requested an instruction on the insufficiency of mere presence at the scene to establish complicity, nor need we determine whether the trial court was obligated to so instruct, as the evidence outlined above shows more than Hamp Jacobs’s presence, and points to his active participation in the shooting. A charge pertaining to “mere presence” was simply not required. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976).

Defendant Anson Jacobs’s Appeal

Defendant first assigns error to the trial court’s denial of his motion for dismissal at the close of the evidence presented by the state and renewed at the close of all the evidence. He assigns error to the denial, arguing that the body of facts adduced was insufficient to sustain his conviction. We hold, on the contrary, that there was ample evidence from which the jury could find complicity in the crime.

The evidence, taken in the light most favorable to the state, shows that defendant drove his companions to the meeting place on the Tram Road, where he parked. He waited in the car while John Haskett and Hamp Jacobs positioned themselves by the road, and he conveyed them away after the shooting. The evidence shows that he was present when the fighting occurred at the Luck Now Tavern and when arrangements were made to meet at the Tram Road. Furthermore, James Graham, Jr., testified that he spoke with defendant on the telephone, and that defendant said to “come down the road, him and Hamp was going to get me and my brother had John to deal with.” This evidence would permit the jury to find that defendant Anson Jacobs was present at the scene of the crime, that he shared in the criminal intent of Haskett and Hamp Jacobs, and that he rendered assistance to them in the perpetration of the offense. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); see State v. Birchfield, 235 N.C. 410, 70 S.E. 2d 5 (1952).

In defendants’ trial and the judgments rendered, we find

No error.

Judges Hedrick and Vaughn concur.