State v. . Green

177 S.E. 120, 207 N.C. 369, 1934 N.C. LEXIS 472

• Court: Supreme Court of North Carolina
• Decided: November 21, 1934
• Status: Published

Opinion

Stagy, O. J.,

after stating the case: In view of the defendant’s own testimony, which amounts to a confession of guilt, it would seem the questions sought to be presented are academic. The evidence offered by the State tends to show that Lester Green fired the fatal shot, while the defendants say Mike Stefanoff was the actual killer. The difference is not material on the present record.

When a conspiracy is formed, as here, to rob a bank, and a murder is committed by any one of the conspirators in the attempted perpetration of the robbery, each and all of them are guilty of the murder. S. v. Stefanoff, 206 N. C., 443; S. v. Bell, 205 N. C., 225, 171 S. E., 50. It is provided by C. S., 4200, that a murder “which shall be committed in the perpetration or attempt to perpetrate any . . . robbery, burglary, or other felony, shall be deemed, to be murder in the first degree.” S. v. Satterfield, ante, 118; S. v. Donnell, 202 N. C., 782, 164 S. E., 352; S. v. Miller, 197 N. C., 445, 149 S. E., 590; S. v. Logan, 161 N. C., 235, 76 S. E., 1. The record discloses no evidence of a lesser degree of homicide. S. v. Spivey, 151 N. C., 676, 65 S. E., 995; S. v. Ferrell, 205 N. C., 640, 172 S. E., 186; S. v. Myers, 202 N. C., 351, 162 S. E., 764.

In the light of the confession made on the witness stand, a continuance would have availed the defendants naught. S. v. Keeter, 206 N. C., 482. Furthermore, this was a matter resting in the sound discretion of the trial court. S. v. Whitfield, 206 N. C., 696.

Nor was it error to refuse the defendants a separate trial on each count in the bill. C. S., 4622; S. v. Stephens, 170 N. C., 745, 87 S. E., 131. Indeed, the attempted robbery and murder having arisen out of the same conspiracy, a sej)arate trial on one of the counts in the bill might have precluded a subsequent prosecution on the other. S. v. Clemmons, ante, 276; S. v. Bell, supra.

The jury’s recommendation of mercy for Lester Green, evidently made in recognition of his hesitancy to enter the conspiracy, was properly disregarded as surplusage. S. v. Matthews, 191 N. C., 378, 131 S. E., 743; S. v. Hancock, 151 N. C., 699, 66 S. E., 137.

No vitiating error having been made to appear, the verdict and judgment will be upheld.

No error.