DeNNY, C.J.
The defendant’s only exceptions and assignments of error are (1) to the failure of the court below to direct a verdict of not guilty at the close of the State’s evidence; (2) in denying the renewal of the motion of the defendant for a directed verdict of not guilty; and (3) to the failure of the court below to set aside the verdict.
Upon a motion for judgment as of nonsuit or for a directed verdict at the close of the State’s evidence, and renewed by the defendant after the introduction of his own evidence, all the evidence upon the whole record tending to sustain a conviction will be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.
S. v. Kelly,
243 N.C. 177, 90 S.E. 2d 241;
S. v. Kluckhohn,
243 N.C. 306, 90 S.E. 2d 768;
S. v. Smith,
237 N.C. 1, 74 S.E. 2d 291;
S. v. McKinnon,
223 N.C. 160, 25 S.E. 2d 606.
The State concedes in its brief that the sole question presented on this appeal is whether or not there was enough evidence to go to the jury on the question of the defendant’s guilt of murder in the first degree.
The State cites and quotes from
S. v. Redfern,
246 N.C. 293, 98 S.E. 2d 322, as follows: “Where two persons aid or abet each other in the commission of a crime, both being present (either actually or constructively), both are principals and are equally guilty.
S. v. Holland,
234 N.C. 354, 67 S.E. 2d 272;
S. v. Jarrell,
141 N.C. 722, 53 S.E. 127.
“
‘A person aids or abets in the commission of a crime within the meaning of this rule when he shares in the criminal intent of the actual perpetrator
(S. v. Oxendine,
187 N.C. 658, 122 S.E. 568), and renders assistance or encouragement to him in the perpetration of the crime.’
S. v. Birchfield,
235 N.C. 410, 70 S.E. 2d 5.”
This Court, speaking through Higgins, J., in
S. v. Stephens,
244 N.C. 380, 93 S.E. 2d 431, said: “We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in
S. v. Simmons,
240 N.C. 780, 83 S.E. 2d 904, quoting from
S. v. Johnson,
199 N.C. 429, 154 S.E. 730: ‘If there be any evidence tending to prove the fact in issue or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.’ The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. * * The foregoing rule has been followed in
S. v., Horner,
248 N.C. 342, 103 S.E. 2d 694;
S. v. Haddock,
254 N.C. 162, 118 S.E. 2d 411;
S. v. Casper,
256 N.C. 99, 122 S.E. 2d 805;
S. v. Thompson,
256 N.C. 593, 124 S.E. 2d 728; and
S. v. Moore,
262 N.C. 431, 137 S.E. 2d 812.
In analyzing the State’s evidence, we find that notwithstanding Allen’s statement to the effect that Bruton ran into the cornfield with Smith, the State’s witness Wooten testified that he passed along Highway 401 on the afternoon in question and saw two colored men in the 1957 black Chevrolet and that he saw one man on the right-hand side of the patrol car; that he did not see a Patrolman there and did not see any other man. In describing the man who was standing beside the patrol car, he testified: “I could not say Bruton is the man I saw; it was a light skinned man like that.” The State’s evidence clearly shows that Reaves and Allen did not tarry long after Smith ran into the cornfield with the Patrolman following him.
The State introduced some thirty-five or forty witnesses in the trial below, and of the witnesses who testified that they passed along Highway 401 and saw the Patrolman talking to the occupants of the 1957
black Chevrolet, or that they saw a patrol car parked on the highway, each one of them either placed Bruton or a “light skinned man” talking to the Patrolman beside the Chevrolet or standing beside the patrol car. None of these witnesses testified that he or she saw the patrol car parked on the highway with no person near it. Without exception, these witnesses testified that Bruton was standing by or near the patrol car or that a “light skinned man” was at the patrol car.
The evidence further disclosed that when Mrs. Wyatt Upchurch drove along this highway and saw the dark skinned man coming out of the cornfield, she saw the light skinned man standing back of the patrol car. Mrs. Upchurch, it appears from the evidence, was the last witness to see the patrol car before it was driven into the woods.
Furthermore, if it be conceded that Bruton told the officers everything which they testified he did tell them, then Bruton was not placed in the cornfield until sometime after the four shots were fired and Smith had-returned to the highway; that Patrolman Herbin was dead when Bruton saw him at the place where he was later found.
In the case of
S. v.
Ham, 238 N.C. 94, 76 S.E. 2d 346, this Court, in substance, held that in order to render one who does not actually participate in the commission of the crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator or perpetrators of the crime, or by his conduct made it known to such perpetrator or perpetrators that he was standing by to render assistance when and if it should become necessary.
In
S. v. Birchfield,
235 N.C. 410, 70 S.E. 2d 5, Ervin, J., speaking for the Court, said: “The mere presence of a person at the scene of a crime at the time of its commission does not make him a principal in .the second degree; and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crime, or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes necessary to its consummation.
S. v. Hart,
186 N.C. 582, 120 S.E. 345;
S. v. Hildreth,
31 N.C. 440, 51 Am. D. 369.” See also
S. v. Burgess,
245 N.C. 304, 96 S.E. 2d 54 and
S. v. Banks,
242 N.C. 304, 87 S.E. 2d 558.
When the officers took Bruton to Smith’s cell for the purpose of having him repeat a statement that Patrolman Williamson testified Bruton had made to him and Sheriff Barrington, Bruton requested permission to ask Smith some questions. Permission was granted; but when these officers realized that the questions asked by Bruton and the answer given by Smith tended to exculpate Bruton from having been with Smith in the cornfield, these officers stopped the questioning. Un
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DeNNY, C.J.
The defendant’s only exceptions and assignments of error are (1) to the failure of the court below to direct a verdict of not guilty at the close of the State’s evidence; (2) in denying the renewal of the motion of the defendant for a directed verdict of not guilty; and (3) to the failure of the court below to set aside the verdict.
Upon a motion for judgment as of nonsuit or for a directed verdict at the close of the State’s evidence, and renewed by the defendant after the introduction of his own evidence, all the evidence upon the whole record tending to sustain a conviction will be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.
S. v. Kelly,
243 N.C. 177, 90 S.E. 2d 241;
S. v. Kluckhohn,
243 N.C. 306, 90 S.E. 2d 768;
S. v. Smith,
237 N.C. 1, 74 S.E. 2d 291;
S. v. McKinnon,
223 N.C. 160, 25 S.E. 2d 606.
The State concedes in its brief that the sole question presented on this appeal is whether or not there was enough evidence to go to the jury on the question of the defendant’s guilt of murder in the first degree.
The State cites and quotes from
S. v. Redfern,
246 N.C. 293, 98 S.E. 2d 322, as follows: “Where two persons aid or abet each other in the commission of a crime, both being present (either actually or constructively), both are principals and are equally guilty.
S. v. Holland,
234 N.C. 354, 67 S.E. 2d 272;
S. v. Jarrell,
141 N.C. 722, 53 S.E. 127.
“
‘A person aids or abets in the commission of a crime within the meaning of this rule when he shares in the criminal intent of the actual perpetrator
(S. v. Oxendine,
187 N.C. 658, 122 S.E. 568), and renders assistance or encouragement to him in the perpetration of the crime.’
S. v. Birchfield,
235 N.C. 410, 70 S.E. 2d 5.”
This Court, speaking through Higgins, J., in
S. v. Stephens,
244 N.C. 380, 93 S.E. 2d 431, said: “We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in
S. v. Simmons,
240 N.C. 780, 83 S.E. 2d 904, quoting from
S. v. Johnson,
199 N.C. 429, 154 S.E. 730: ‘If there be any evidence tending to prove the fact in issue or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.’ The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. * * The foregoing rule has been followed in
S. v., Horner,
248 N.C. 342, 103 S.E. 2d 694;
S. v. Haddock,
254 N.C. 162, 118 S.E. 2d 411;
S. v. Casper,
256 N.C. 99, 122 S.E. 2d 805;
S. v. Thompson,
256 N.C. 593, 124 S.E. 2d 728; and
S. v. Moore,
262 N.C. 431, 137 S.E. 2d 812.
In analyzing the State’s evidence, we find that notwithstanding Allen’s statement to the effect that Bruton ran into the cornfield with Smith, the State’s witness Wooten testified that he passed along Highway 401 on the afternoon in question and saw two colored men in the 1957 black Chevrolet and that he saw one man on the right-hand side of the patrol car; that he did not see a Patrolman there and did not see any other man. In describing the man who was standing beside the patrol car, he testified: “I could not say Bruton is the man I saw; it was a light skinned man like that.” The State’s evidence clearly shows that Reaves and Allen did not tarry long after Smith ran into the cornfield with the Patrolman following him.
The State introduced some thirty-five or forty witnesses in the trial below, and of the witnesses who testified that they passed along Highway 401 and saw the Patrolman talking to the occupants of the 1957
black Chevrolet, or that they saw a patrol car parked on the highway, each one of them either placed Bruton or a “light skinned man” talking to the Patrolman beside the Chevrolet or standing beside the patrol car. None of these witnesses testified that he or she saw the patrol car parked on the highway with no person near it. Without exception, these witnesses testified that Bruton was standing by or near the patrol car or that a “light skinned man” was at the patrol car.
The evidence further disclosed that when Mrs. Wyatt Upchurch drove along this highway and saw the dark skinned man coming out of the cornfield, she saw the light skinned man standing back of the patrol car. Mrs. Upchurch, it appears from the evidence, was the last witness to see the patrol car before it was driven into the woods.
Furthermore, if it be conceded that Bruton told the officers everything which they testified he did tell them, then Bruton was not placed in the cornfield until sometime after the four shots were fired and Smith had-returned to the highway; that Patrolman Herbin was dead when Bruton saw him at the place where he was later found.
In the case of
S. v.
Ham, 238 N.C. 94, 76 S.E. 2d 346, this Court, in substance, held that in order to render one who does not actually participate in the commission of the crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator or perpetrators of the crime, or by his conduct made it known to such perpetrator or perpetrators that he was standing by to render assistance when and if it should become necessary.
In
S. v. Birchfield,
235 N.C. 410, 70 S.E. 2d 5, Ervin, J., speaking for the Court, said: “The mere presence of a person at the scene of a crime at the time of its commission does not make him a principal in .the second degree; and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crime, or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes necessary to its consummation.
S. v. Hart,
186 N.C. 582, 120 S.E. 345;
S. v. Hildreth,
31 N.C. 440, 51 Am. D. 369.” See also
S. v. Burgess,
245 N.C. 304, 96 S.E. 2d 54 and
S. v. Banks,
242 N.C. 304, 87 S.E. 2d 558.
When the officers took Bruton to Smith’s cell for the purpose of having him repeat a statement that Patrolman Williamson testified Bruton had made to him and Sheriff Barrington, Bruton requested permission to ask Smith some questions. Permission was granted; but when these officers realized that the questions asked by Bruton and the answer given by Smith tended to exculpate Bruton from having been with Smith in the cornfield, these officers stopped the questioning. Un
der the circumstances, Bruton was fully justified in declining to make any further statements before Smith.
In the case of
S. v. Carter,
254 N.C. 475, 119 S.E. 2d 461, this Court said: “When the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements.
S. v. Todd,
222 N.C. 346, 23 S.E. 2d 47;
S. v. Boyd,
223 N.C. 79, 25 S.E. 2d 456;
S. v. Watts,
224 N.C. 771, 32 S.E. 2d 348;
S. v. Ray,
229 N.C. 40, 47 S.E. 2d 494.”
S. v. Gaines,
260 N.C. 228, 132 S.E. 2d 485.
Likewise, the State did not rebut, contradict, or in any manner seek to refute the testimony of the defendant to the effect that upon his arrest he was placed in the back seat of the officer's car and his left hand was handcuffed to Smith’s right hand and they were carried from Pinehurst to Raeford in that condition. This constituted defendant’s explanation of why he had certain chemicals on the back of his left hand.
On a motion to nonsuit, the defendant’s evidence which explains or makes clear the evidence of the State may be considered. Strong’s North Carolina Index, Yol. I, Criminal Law, § 99;
S. v. Nall,
239 N.C. 60, 79 S.E. 2d 354;
S. v. Smith,
237 N.C. 1, 74 S.E. 2d 291;
S. v. Bryant,
235 N.C. 420, 70 S.E. 2d 186;
S. v. Sears,
235 N.C. 623, 70 S.E. 2d 907.
On a motion for nonsuit, the foregoing rule also permits the consideration of defendant’s evidence which rebuts the inference of guilt when it is not inconsistent with the State’s evidence.
S. v. Oldham,
224 N.C. 415, 30 S.E. 2d 318.
No one would attempt to minimize the atrocious and indefensible conduct of the person who murdered Patrolman Herbin. Even so, this defendant is entitled to his liberty unless the State’s' evidence was sufficient to support his conviction.
After a careful consideration of all the State’s evidence, and so much of the defendant’s evidence as it is permissible for us to consider on a motion for judgment as of nonsuit or for a directed verdict, we have concluded that the evidence against this defendant is insufficient to sustain the verdict rendered below. Therefore, the judgment entered by the court below is
Reversed.
PARKER, J., dissents.