STATE of North Carolina
v.
James Louis BUIE.
No. 7520SC179.
Court of Appeals of North Carolina.
June 4, 1975.*402 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Joan H. Byers, Raleigh, for the State.
Chambers, Stein & Ferguson by Charles L. Becton, Chapel Hill, for defendant appellant.
CLARK, Judge.
The defendant was convicted as a principal of the crimes of breaking or entering, felonious larceny, and attempted safecracking, though he was not actually present at the scene of the crimes. There are two exceptions to the rule that an accused cannot be convicted as a principal when he is not actually present at the scene. First, if the defendant was constructively *403 present when the crime was committed and aided or abetted the others in the commission of the crime, he would be a principal in the second degree and equally guilty with the others. State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975). Second, the accused would be guilty as a principal when he causes a crime to be committed through an innocent agent, that is, one who is not himself legally responsible for the act, i. e., a mental defective. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).
There is no evidence in this case that Dowdy or any of his partners in crime were innocent agents. Nor is there sufficient evidence to support a finding that the defendant was an aider and abettor and, therefore, guilty as a principal in the second degree, because the evidence, considered in the light most favorable to the State, does not support the defendant's constructive presence. At the time of the perpetration of the crimes the defendant was in his home about a quarter of a mile away. While actual distance from the crime scene is not always controlling in determining constructive presence, the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime. State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Chastain, 104 N.C. 900, 10 S.E. 519 (1889); State v. Alston, 17 N.C.App. 712, 195 S.E.2d 314 (1973); State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972).
We conclude, therefore, that under this evidence, the defendant could not be guilty as a principal of either the crime of breaking or entering or larceny or attempted safecracking. However, there is evidence sufficient to support a conviction for accessory before the fact to breaking or entering, and for accessory before the fact to felonious larceny. The crime of accessory before the fact is a lesser offense of a felony charged in the bill of indictment, and a defendant may be convicted of accessory before the fact on an indictment charging the principal crime. G.S. § 15-170; State v. Simons, 179 N.C. 700, 103 S.E. 5 (1920); State v. Bryson, 173 N.C. 803, 92 S.E. 698 (1917); State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972).
An accessory before the fact is defined in G.S. § 14-5 as one who shall "counsel, procure or command any other person to commit any felony." G.S. § 14-6 provides for the punishment of accessories before the fact. "`There are several elements that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime.'" State v. Bass, 255 N.C. 42, 51, 120 S.E.2d 580, 587 (1961), quoting 22 C.J.S. Criminal Law § 90, at 269 (1961). See also State v. Williams, 208 N.C. 707, 182 S.E. 131 (1935); State v. Mann, 2 N.C. 4 (1781).
On the charge of attempted safecracking the evidence shows that the defendant asked Dowdy to help him get some tools; that they planned for Dowdy and others to break into the Riddle Equipment Co. building to steal tools; that while the four men were in the building, one of the four, John, got a sledgehammer, chisel and torch, and while the other three were gathering up tools, attempted to break open the safe; after the three men had put the tools in boxes, they told John to forget the safe, which he apparently did. We find that the defendant is not criminally responsible for the acts of the one, John, since it was the independent product of his mind, foreign to the common design and plan to break into the building and steal tools. Safecracking (G.S. § 14-89.1) is a separate and distinct crime, usually requiring special implements or explosives and particular skills. The maximum punishment under the statute exceeds that of breaking or entering combined. Under these circumstances the attempted safecracking was outside, and not incidental to, the scope of the plan to steal tools.
*404 The rule of criminal responsibility for the acts of others is subject to the reasonable limitation that the particular act must be shown to have been done in furtherance or in prosecution of the common object and design for which the parties were combined. 21 Am.Jur.2d, Criminal Law, § 132 (1965); 15A C.J.S. Conspiracy § 74 (1967); People v. Werner, 16 Cal. 2d 216, 105 P.2d 927 (1940).
On the charge of attempted safecracking (74CR6017), the judgment is vacated.
On the charges of breaking or entering and larceny (74CR6016), the cause is remanded so that the District Attorney, should he elect to do so, may try defendant under the original bill of indictment for the offense of being an accessory before the fact to breaking or entering and for the offense of accessory before the fact to larceny.
MARTIN and ARNOLD, JJ., concur.