STATE
v.
BIRCHFIELD et al.
No. 3.
Supreme Court of North Carolina.
April 16, 1952.*7 Atty. Gen. Harry McMullan, and Asst. Atty. Gen. T. W. Bruton, for the State.
R. B. Morphew and T. M. Jenkins, Robbinsville, for the defendants, appellants.
ERVIN, Justice.
The defendants insist initially upon reversals on the ground that the action ought to have been involuntarily nonsuited as to all of them under the statute embodied in G.S. § 15-173. Inasmuch as they have been convicted of the principal charge rather than of a lesser offense included in it, our present inquiry comes to this: Does the State's evidence suffice to show that the defendants or any of them committed a felonious assault and battery with a deadly weapon with intent to kill within the purview of the statute codified as G.S. § 14-32?
The State bottoms this prosecution on the theory that Theodore Birchfield is guilty as a principal in the first degree, and that D. W. Birchfield and Leroy Birchfield are guilty as principals in the second degree.
A principal in the first degree in an assault and battery is he who actually commits the assault and battery with his own hand. A principal in the second degree in an assault and battery is one who is actually or constructively present when an assault and battery is committed by another, and who aids or abets such other in its commission. State v. Minton, 234 N.C. 716, 68 S.E.2d 844; State v. Allison, 200 N.C. 190, 156 S.E. 547; State v. Morris, 10 N.C. 388.
To warrant the conviction of an accused of a felonious assault and battery under G.S. § 14-32 on the theory that he participated in the offense as a principal in the first degree, the State must produce evidence sufficient to establish beyond a reasonable doubt that he did these four things: (1) That he committed an assault and battery upon another; (2) that he committed the assault and battery with a deadly weapon; (3) that he committed the assault and battery with intent to kill the victim of his violence; and (4) that he thus inflicted on the person of his victim serious injury not resulting in death. State v. Hefner, 199 N. C. 778, 155 S.E. 879; State v. Gibson, 196 N.C. 393, 145 S.E. 772; State v. Redditt, 189 N.C. 176, 126 S.E. 506; State v. Crisp, 188 N.C. 799, 125 S.E. 543.
This being true, the sufficiency of the State's evidence to establish the guilt of Theodore Birchfield on the principal charge is too evident to admit of dispute.
This conclusion does not put an end to our present inquiry. D. W. Birchfield and Leroy Birchfield take the position that the action should have been involuntarily nonsuited as to them for insufficiency of evidence of aiding and abetting even if the State's evidence is ample to prove that Theodore Birchfield committed a felonious assault and battery upon Jordan in their presence.
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. State v. Hart, 186 N.C. 582, 120 S.E. 345; State v. Hildreth, 31 N.C. 440, 51 Am.Dec. 369.
To constitute one a principal in the second degree, he must not only be actually or constructively present when the crime is committed, but he must aid or abet the actual perpetrator in its commission. State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Davenport, 156 N.C. 596, 72 S.E. 7; State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58. 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, State v. Oxendine, 187 N.C. 658, 122 S.E. 568, and renders assistance or encouragement to him in the perpetration of the crime. State v. Hoffman, 199 N.C. 328, 154 S.E. 314; State v. Baldwin, 193 N.C. 566, 137 S.E. 590. While mere presence cannot constitute aiding and abetting in legal contemplation, a bystander does become a principal in the second degree by his presence at the time and place of a crime where he is present to the knowledge of the actual perpetrator for *8 the purpose of assisting, if necessary, in the commission of the crime, and his presence and purpose do, in fact, encourage the actual perpetrator to commit the crime. State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Johnson, 220 N.C. 773, 18 S.E.2d 358; State v. Hoffman, supra; State v. Cloninger, 149 N.C. 567, 63 S.E. 154; State v. Jarrell, 141 N.C. 722, 53 S.E. 127, 8 Ann. Cas. 438; State v. Chastain, 104 N.C. 900, 10 S.E. 519.
Their relationship to the actual perpetrator of the crime, the motives tempting them to assist in the crime, their presence at the time and place of the crime, and their conduct before and after the crime are circumstances to be considered in determining whether D. W. Birchfield and Leroy Birchfield aided and abetted Theodore Birchfield in the perpetration of the felonious assault and battery. When these circumstances are appraised at their true probative value, they suffice to show beyond a reasonable doubt that D. W. Birchfield and Leroy Birchfield were actually present when their father shot and seriously wounded Jordan with intent to kill him; that they both shared in their father's criminal intent; that D. W. Birchfield actually aided his father in the crime by stopping the automobile and permitting his father to fire at Jordan from a stationary position; and that Leroy Birchfield actually encouraged his father to commit the crime by being present at the time and place of the crime to the knowledge of his father for the purpose of assisting, if necessary, in the consummation of the crime. Consequently the trial judge properly permitted the jury to pass upon the guilt and innocence of D. W. Birchfield and Leroy Birchfield.
The defendants assert secondarily that they are entitled to a new trial for errors committed by the trial judge in denying their motion for a continuance, in receiving and rejecting evidence, in disparaging them and their counsel in the presence of the jury, and in instructing the jury on the law of the case.
The granting or refusing of a motion for a continuance in a criminal action rests largely in the discretion of the trial judge. State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; State v. Culberson, 228 N.C. 615, 46 S.E.2d 647; State v. Rising, 223 N.C. 747, 28 S.E.2d 221; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594. In consequence, a ruling of a trial judge denying the motion of an accused for a continuance will not be disturbed on appeal unless the accused shows by the record that the denial of the motion amounted to an abuse of discretion or deprived him of his fundamental right to an adequate and fair trial. State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Farrell, 223 N.C. 321, 26 S.E.2d 322. The defendants make no such showing in the case at bar.
The defendants assign as error the receipt of the State's testimony that six weeks prior to the felonious assault and battery alleged in the indictment one of the defendants shot the presecutor, that the prosecutor had all of the defendants arrested and charged with jointly assaulting him in connection with the shooting, and that such charge was awaiting trial at the time specified in the indictment. This evidence had a logical tendency to show intent and motive on the part of the defendants, and consequently its admission was proper. State v. Church, 231 N.C. 39, 55 S.E.2d 792; State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648; State v. Lefevers, 216 N.C. 494, 5 S.E.2d 552; State v. Ray, 212 N.C. 725, 194 S.E. 482; Stansbury on North Carolina Evidence, section 92. The remaining assignments of error challenging the receipt or rejection of evidence have either been abandoned under Rule 28 or are without substantial merit.
The defendants claim that the trial judge disparaged them and their cause by an inquiry made of their counsel and a remark directed to Theodore Birchfield. When the case on appeal is read aright, these things appear either expressly or impliedly: The witness stand is near the judge's bench. During his re-direct examination, the State's witness Boyd Jordan, who had been testifying a considerable time, asked for a drink of water. The only water in the courtroom was in a pitcher on the judge's desk. The judge poured some water from the pitcher into a glass, and handed the *9 glass to Jordan. As he did so, the solicitor propounded a question to the witness, and the defendants objected to it. Having heard the objection but not the question, the judge inquired of counsel for the defendants whether they were objecting to his "giving (the) witness a drink of water." Upon being advised as to the real basis of the objection, the judge promptly ruled thereon. While the defendant Theodore Birchfield was testifying in his own behalf, he volunteered the statement that he had documentary evidence to show he was "not well." It does not appear whether the solicitor objected to this incompetent statement. Be that as it may, the judge admonished Theodore Birchfield "to keep quiet until (counsel) ask you questions."
The judge was merely ascertaining the basis for the defendants' objection before ruling thereon, and endeavoring to require Theodore Birchfield to observe the rules of evidence. His conduct in so doing did not deprive the accused of their fundamental right "to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm." State v. Carter, 233 N.C. 581, 65 S.E.2d 9, 10.
The defendants noted thirteen exceptions to the charge, ten to instructions on the law and three to statements of contentions on the facts. All of the instructions on the law are substantially correct, except that defining the term "serious injury," which is inaccurate. Despite its inaccuracy, we are constrained to hold on the present record that this particular instruction occasioned no prejudice to the defendants. The exceptions to the statements of the contentions present nothing for review because the defendants did not call the supposed misstatements to the attention of the judge at the time they were made, and afford him an opportunity to correct them before the case was given to the jury. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608.
The proceedings in the superior court will be upheld, for there is in law
No error.