STATE of North Carolina
v.
Edith Shoemaker PHILYAW.
No. 7.
Supreme Court of North Carolina.
December 7, 1976.*372 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis, Raleigh, for the State.
Fate J. Beal and Beverly T. Beal, Lenoir, for defendant-appellant.
COPELAND, Justice.
Counsel for defendant, without waiving his other assignments of error, stressed in oral argument that the trial court erred in allowing defendant to be tried as an accessory before the fact to murder upon an indictment for first degree murder. We believe that Judge Grist was correct in permitting the defendant to be tried as an accessory before the fact.
At common law an accessory before the fact could only be convicted when tried at the same time as the principal, or after trial and conviction of the principal. State v. Jones, 101 N.C. 719, 8 S.E. 147 (1888). In enacting G.S. 14-5, North Carolina recognized accessory before the fact as a substantive felony, making it no longer necessary to first convict the principal in order to convict an accessory. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967).
G.S. 14-5 provides in pertinent part as follows:
"If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person so counseling, procuring or commanding shall be guilty of a felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon; or he may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished."
Proof of three elements is necessary to sustain a conviction for accessory before the fact. It must be shown (1) that the defendant counseled, procured, commanded, or encouraged the principal to commit the crime, (2) that he was not present when the crime was committed, and (3) that the principal committed the crime. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Benton, 275 N.C. 378, 167 S.E.2d 775 (1969); State v. Bass, 255 N.C. 42, 120 S.E.2d 580 (1961). Ample evidence was presented at trial from which the jury could find defendant guilty beyond a reasonable doubt of this offense.
*373 The fact that defendant was indicted for first degree murder did not preclude her conviction as an accessory before the fact. Upon trial on an indictment, a defendant may always be convicted of the crime charged therein or a lesser degree of the same crime. State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961), and our Court has held that accessory before the fact is a lesser included offense of the principal crime. State v. Branch, supra; State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); See Note, 41 N.C.L.Rev. 118 (1962).
Recently, in State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), the defendant was indicted for murder in the first degree. At the close of the State's evidence, the trial court dismissed the murder charge and submitted the case to the jury on the lesser included offense of accessory before the fact. The procedure followed in Hunter was identical to that followed in the instant case. We adhere to our former opinions on this subject and overrule this assignment of error.
Under Assignments of Error Nos. 2, 11, 14, 31, 32, 34, and 35, defendant contends that the trial court erred in its rulings on defendant's discovery motions.
On 2 July 1975, counsel for the defendant filed, pursuant to G.S. 15-155.4, a broad discovery motion to require the district attorney to make available to the defendant, among other things, all physical evidence in the State's possession related to the crime. Defendant complains because the physical evidence, specifically the "truck occupied by the deceased," was not supplied for her examination.
G.S. 15-155.4, the applicable law then in effect, provided in relevant part:
"In all criminal cases before the superior court, the superior court judge . . . shall for good cause shown, direct the solicitor or other counsel for the State to produce for inspection, examination, copying and testing by the accused or his counsel any specifically identified exhibits to be used in the trial of the case sufficiently in advance of the trial to permit the accused to prepare his defense; and such judge shall for good cause shown and regardless of any objection of the solicitor or other counsel for the State, direct that the accused or his counsel be permitted to examine . . any expert witnesses to be offered by the State in the trial of the case regarding the proposed testimony of such expert witnesses." N.C.Sess.Laws, ch. 1064, § 1 (1967) (repealed effective 1 September 1975). [Emphasis added]
There is no common law right to discovery in a criminal action, State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972), and defendant's request for discovery did not fall within the limited statutory discovery right provided in G.S. 15-155.4. That statute contemplated discovery of exhibits and experts to be used at trial. We have held that the purpose of the statute was "to enable a defendant to guard against surprise documents and surprise expert witnesses." State v. Davis, supra, 282 N.C. at 111, 191 S.E.2d at 667; State v. Peele, 281 N.C. 253, 258, 188 S.E.2d 326, 330 (1972); see State v. Tatum, N.C., 229 S.E.2d 562 (1976), decided this day; State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Macon, 276 N.C. 466, 173 S.E.2d 286 (1970). The deceased's truck was not a trial exhibit.
Defendant admits that she was furnished a copy of the SBI laboratory report, a list of witnesses which the State intended to call in the case, an autopsy report, and a set of photographs of physical evidence, including photographs of the truck, which were to be introduced at trial. The defendant has obtained from the district attorney all that she was entitled to under G.S. 15-155.4. This assignment of error is without merit and overruled.
Under Assignment of Error No. 30, defendant asserts that the trial court erred in failing to hold a hearing on defendant's motions for suppression of evidence. The record discloses that defense counsel filed a pretrial motion to suppress statements made by either Bobby Burns or Isiah Hood to officers of any law enforcement agency on the ground that any statements of Bobby Burns or Isiah Hood, "to the extent that *374 they implicate defendant Philyaw, would be hearsay and not admissible . . ."
At trial the district attorney called as a witness, Detective Captain Jim Beane of the Sheriff's Department, who had previously interviewed Bobby Burns and Isiah Hood. Defense counsel objected generally to what each of these witnesses told Captain Beane. Thereupon, the court properly instructed the jury that Captain Beane's testimony was being received for the purpose of corroborating the testimony of Bobby Burns and Isiah Hood, both of whom had already testified. At the request of counsel, the court further instructed the jury that this testimony was not to be considered as substantive evidence. The court gave an elaborate instruction as to corroborative evidence, fully complying with the law on this subject. 1 Stansbury's N.C. Evidence, § 52 (Brandis Rev.1973). At the conclusion of Captain Beane's testimony, counsel for the defendant moved to strike the entire testimony in order to "protect our rights."
The sole reason given by defense counsel for his pretrial motion to suppress was the hearsay nature of statements made by Bobby Burns and Isiah Hood to Captain Beane. G.S. 15A-977(c) provides that a judge may summarily deny a motion to suppress evidence made before a trial if "[t]he motion does not allege a legal basis for the motion; of [if] . . . [t]he affidavit does not as a matter of law support the ground alleged." Defense counsel submitted no supporting affidavit and on the face of the motion, no legal basis for the motion appeared. The evidence was offered for the purpose of corroboration only and was not, as a matter of law, a violation of the hearsay rule. 1 Stansbury's N.C. Evidence, §§ 51, 52 (Brandis Rev.1973).
It is unnecessary for us to consider whether the trial judge should have held a suppression hearing based on defendant's motions at trial. Defense counsel never made a written or oral suppression motion at trial but rather objected generally to Captain Beane's testimony and moved only to strike it. See G.S. 15A-977(a) and (e). Defendant's contentions are devoid of merit and overruled.
Under Assignment of Error No. 38, defendant maintains that the trial court should have directed a verdict of not guilty because the guilt of one of the principals, Bobby Hood, was not shown beyond a reasonable doubt. It is true that at the time of this trial Bobby Hood had not been convicted of murder. However, the trial judge instructed the jury that the State must prove beyond a reasonable doubt that the principal, Bobby Hood, had committed the crime of murder before they, the jury, could convict the defendant of accessory before the fact to murder. Substantial evidence was introduced at trial from which the jury could find that Bobby Hood was guilty of murder beyond a reasonable doubt. Upon proper instruction, the jury implicitly found that Bobby Hood had committed the murder. Incidentally, it was admitted by counsel for the defendant during argument that Bobby Hood was later convicted of first degree murder. This assignment lacks merit and is overruled.
The defendant's brief has other assignments of error as follows: Nos. 4, 15, 16, 17, 33, 39, 40 and 41. We have examined all of these and find no merit in any of them. In addition, due to the serious nature of the crime for which defendant has been convicted, we have searched the record for errors other than those assigned and have found none prejudicial to the defendant.
In the trial we find
NO ERROR.