State v. Sutton

Court of Appeals of North Carolina

State v. Sutton

255 S.E.2d 331, 41 N.C. App. 603, 1979 N.C. App. LEXIS 2660

CourtCourt of Appeals of North Carolina

DecidedJune 5, 1979

DocketNo. 792SC113

StatusPublished

This text of 255 S.E.2d 331 (State v. Sutton) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Sutton, 255 S.E.2d 331, 41 N.C. App. 603, 1979 N.C. App. LEXIS 2660 (N.C. Ct. App. 1979).

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Opinion

HEDRICK, Judge.

By his first two assignments of error, the defendant contends that the trial judge incorrectly instructed the jury with regard to the law of aiding and abetting and then incorrectly applied the law to the facts of the case. Defendant argues that the instructions given would permit the jury to find him guilty of aiding and abetting without finding that he was either actually or constructively present at the scene of the crime. We agree.

After charging the jury with regard to the legal principle of aiding and abetting, the trial judge gave the following instruction:

[S]o I charge you that if you find, beyond a reasonable doubt . . . that if [the defendant] was not physically present, that [605]*605he shared the criminal purpose of Thurman Dixon and to the knowledge of Dixon assisted him by furnishing a motor vehicle and planning the crime and thereby aided him, it would be your duty to return a verdict of guilty of armed robbery as to Alonzo Sutton.

This instruction is erroneous because it would permit the jury to find the defendant guilty of aiding and abetting if they found that his only participation was the furnishing of the automobile to Dixon prior to the time that Dixon committed the crime, even though the jury also found that the defendant was not present during the commission of the offense and had no knowledge that the crime would be committed. “[Pjresence, either actual or constructive, is indispensable to the position of a principal in the second degree.” State v. Wiggins, 16 N.C. App. 527, 530, 192 S.E. 2d 680, 682 (1972). When a person is not actually present at the scene of the offense, to be guilty of aiding and abetting he must have the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and be near enough to render such assistance, and he must communicate this intent to the perpetrators. State v. Sanders, 288 N.C. 285, 290-91, 218 S.E. 2d 352, 357 (1975); State v. Gregory, 37 N.C. App. 693, 247 S.E. 2d 19 (1978); State v. Williams, 28 N.C. App. 320, 220 S.E. 2d 856 (1976). If the jury finds that the defendant was neither actually nor constructively present at the scene of the crime, the evidence in this case would permit the jury to find him guilty at most, of being an accessory before the fact. State v. Wiggins, supra. For error in the instructions, the defendant is entitled to a new trial.

We find it unnecessary to discuss defendant’s remaining assignment of error since it is unlikely to recur at a new trial.

New trial.

Chief Judge MORRIS and Judge WEBB concur.

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HEDRICK, Judge.

By his first two assignments of error, the defendant contends that the trial judge incorrectly instructed the jury with regard to the law of aiding and abetting and then incorrectly applied the law to the facts of the case. Defendant argues that the instructions given would permit the jury to find him guilty of aiding and abetting without finding that he was either actually or constructively present at the scene of the crime. We agree.

After charging the jury with regard to the legal principle of aiding and abetting, the trial judge gave the following instruction:

[S]o I charge you that if you find, beyond a reasonable doubt . . . that if [the defendant] was not physically present, that [605]*605he shared the criminal purpose of Thurman Dixon and to the knowledge of Dixon assisted him by furnishing a motor vehicle and planning the crime and thereby aided him, it would be your duty to return a verdict of guilty of armed robbery as to Alonzo Sutton.

This instruction is erroneous because it would permit the jury to find the defendant guilty of aiding and abetting if they found that his only participation was the furnishing of the automobile to Dixon prior to the time that Dixon committed the crime, even though the jury also found that the defendant was not present during the commission of the offense and had no knowledge that the crime would be committed. “[Pjresence, either actual or constructive, is indispensable to the position of a principal in the second degree.” State v. Wiggins, 16 N.C. App. 527, 530, 192 S.E. 2d 680, 682 (1972). When a person is not actually present at the scene of the offense, to be guilty of aiding and abetting he must have the intent to aid the perpetrators in the commission of the offense should his assistance become necessary and be near enough to render such assistance, and he must communicate this intent to the perpetrators. State v. Sanders, 288 N.C. 285, 290-91, 218 S.E. 2d 352, 357 (1975); State v. Gregory, 37 N.C. App. 693, 247 S.E. 2d 19 (1978); State v. Williams, 28 N.C. App. 320, 220 S.E. 2d 856 (1976). If the jury finds that the defendant was neither actually nor constructively present at the scene of the crime, the evidence in this case would permit the jury to find him guilty at most, of being an accessory before the fact. State v. Wiggins, supra. For error in the instructions, the defendant is entitled to a new trial.

We find it unnecessary to discuss defendant’s remaining assignment of error since it is unlikely to recur at a new trial.

New trial.

Chief Judge MORRIS and Judge WEBB concur.

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255 S.E.2d 331, 41 N.C. App. 603, 1979 N.C. App. LEXIS 2660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sutton-ncctapp-1979.

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