STATE of North Carolina
v.
Devoyd Eugene "Pete" GLAZE and Robert Lee Hart.
No. 7829SC188.
Court of Appeals of North Carolina.
July 11, 1978.*576 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ben G. Irons, II, Raleigh, for the State.
Carroll W. Walden, Jr., Forest City, for defendant-appellant Devoyd Eugene "Pete" Glaze.
George R. Morrow, Forest City, for defendant-appellant Robert Lee Hart.
PARKER, Judge.
The State presented ample evidence to support the conviction of defendant Glaze as a principal in the first degree, and he concedes this point in his brief. However, Hart contends that the State's evidence was not sufficient to support his conviction of aiding and abetting the actual perpetrators of the offense.
To convict Hart of aiding and abetting, the State was required to present sufficient evidence to show that he was present, either actually or constructively, at the scene of the crime with the intent to aid the perpetrators if necessary and that the intent to render assistance was communicated in some manner to the actual perpetrators. State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973). "In order to determine whether a defendant is present, the court must determine whether `he is near enough to render assistance if need be and to encourage the actual perpetration of the felony.'" *577 State v. Lyles, 19 N.C.App. 632, 635, 199 S.E.2d 699, 701 (1973). Viewed in the light of these principles, we conclude that the State's evidence was insufficient as a matter of law to show that Hart was actually or constructively present at the scene of the crime.
There was no evidence that Hart was actually present at the scene of the crime, the State's evidence being that Hart stayed inside the motel room while the criminal acts were committed. We cannot agree with the State's contention that the evidence gives rise to a reasonable inference that Hart was constructively present. Although there was evidence that Hart helped plan the break-in, that he drove away with the perpetrators after the offenses were committed, and that he received "[a] few of the drugs," the evidence falls short of showing that he was in a position to render assistance and give encouragement at the time the crimes were being committed. The evidence showed that the motel was located in front of the pharmacy. The back portion of the motel was located approximately fifty feet from the pharmacy, while the front of the motel was approximately 250 feet from the pharmacy. There was also evidence that a person "can see a portion of the motel from the Medical Arts [Pharmacy] building," but there was no evidence that the pharmacy or any other adjacent area was visible from the motel room occupied by Hart. The evidence showed that Hart did not wait in the getaway car while the offenses were committed and that he did not drive the getaway car. Furthermore, there was no evidence that he owned or controlled the getaway car.
Although the evidence was insufficient to support Hart's conviction as a principal, he is not entitled to a dismissal of the charges because there was sufficient evidence that he was an accessory before the fact to the principal offenses. A person who "shall counsel, procure or command any other person to commit any felony" is guilty as an accessory before the fact. G.S. 14-5. The evidence of Hart's involvement in the planning of the offenses with which he was charged is sufficient to show that he counseled and advised the actual perpetrators. In addition, the evidence showed that Hart was not present when the offenses were committed and that the offenses were committed by the principals, Glaze, Brooks, and Wiggins. See State v. Bass, 255 N.C. 42, 120 S.E.2d 580 (1961); State v. Buie, 26 N.C.App. 151, 215 S.E.2d 401 (1975).
The indictment in the present case only charged Hart with the principal offenses, and the trial judge did not instruct the jury on the offense of accessory before the fact. However, "[t]he crime of accessory before the fact is included in the charge of the principal crime." State v. Jones, 254 N.C. 450, 452, 119 S.E.2d 213, 214 (1961). At a new trial, Hart may be tried for accessory before the fact on the indictment charging only the principal offenses, despite the failure of the trial judge to instruct on accessory before the fact at the previous trial. State v. Buie, supra; State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972). Therefore, as to defendant Hart, the case will be remanded so that the district attorney, should he elect to do so, may try the defendant Hart under the original bill of indictment for the offense of being an accessory before the fact to breaking and entering and for the offense of being an accessory before the fact to larceny.
In view of our disposition of this case as to defendant Hart, it is unnecessary to consider his second assignment of error, which is directed to the trial judge's definition of aiding and abetting in the charge to the jury.
Defendants' final assignment of error arises out of the jury's difficulty in reaching a verdict. The jury began its deliberations late in the afternoon. After deliberating for just over an hour, the court took its evening recess, and the jury resumed deliberations the following morning. After deliberating one hour and twenty-five minutes, the jury returned into the court, and the foreman informed the judge that it appeared that a verdict could not be reached. Without indicating which way the *578 majority had voted, the foreman informed the judge that the jury was split eleven to one. The judge then instructed the jury to try again to reach a verdict. Defendants contend that these instructions tended to coerce the jury into rendering a verdict of guilty. We do not agree. While encouraging the jury to reach a verdict to avoid the time and expense of another trial, the judge stated that he did not want his comments to be interpreted as coercion, and on two occasions he admonished the jurors not to surrender their conscientious convictions. The instructions urging the jury to agree on a verdict were not specifically directed to the juror in the minority but were directed to the jury as a whole. Therefore, we find that the instructions were not coercive. See State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978); State v. Butler, 269 N.C. 483, 153 S.E.2d 70 (1967). Accordingly, this assignment of error is overruled.
As to defendant Hart, the case is remanded for a
New Trial.
As to defendant Glaze, we find
No Error.
HEDRICK and MITCHELL, JJ., concur.