STATE
v.
Mary REDFERN and John Henry Redfern.
No. 433.
Supreme Court of North Carolina.
May 22, 1957.*325 George B. Patton, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
E. Osborne Ayscue, Monroe, for the defendants.
JOHNSON, Justice.
Was the evidence sufficient to overcome the defendants' motions for nonsuit and carry the case to the jury as to each defendant? These are the only questions presented for decision.
The evidence that John Henry Redfern confessed that he shot his father, when considered with the coroner's testimony that the deceased died as a result of the bullet wound in his chest, was sufficient to raise the presumption of an unlawful killing with malice and carry the case to the jury as against John Henry Redfern on the issue of second degree murder. State v. Gordon, 241 N.C. 356, 85 S.E. 2d 322; State v. Robinson, 226 N.C. 95, 36 S.E.2d 655. It was incumbent on this defendant to satisfy the jury of the truth of facts showing absence of malice and mitigating the homicide to manslaughter, or *326 justifying it on the ground of self-defense. State v. Gordon, supra. The jury by returning a verdict of guilty of manslaughter resolved the question of mitigation in favor of the defendant but rejected his plea of justification. In the absence of the judge's charge to the jury, which was not included in the record, it is assumed that the views of this defendant respecting his plea of self-defense were adequately presented to the jury.
As to the defendant Mary Redfern, the theory of the trial was that John Henry Redfern fired the fatal shot and that Mary Redfern was guilty as a principal in the second degree, she being present aiding, abetting, or encouraging her son in the perpetration of the unlawful act. State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 31 A.L.R.2d 682.
Where two persons aid or abet each other in the commission of a crime, both being present (either actually or constructively), both are principals and are equally guilty. State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Jarrell, 141 N.C. 722, 53 S.E. 127.
"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. Birchfield, 235 N.C. 410, 70 S.E.2d 5, 7.
True, "Mere presence, even with the intention of assisting in the commission of a crime, cannot be said to have incited, encouraged, or aided the perpetrator thereof, unless the intention to assist was in some way communicated to him; but, if one does something that will incite, encourage, or assist the actual perpetration of a crime, this is sufficient to constitute aiding and abetting." State v. Hoffman, 199 N.C. 328, 333, 154 S.E. 314, 316.
It is elemental that the guilt of an accused as an aider and abettor may be established by circumstantial evidence. State v. Holland, supra; State v. McKinnon, 197 N.C. 576, 150 S.E. 25.
In considering whether the evidence tending to implicate Mary Redfern was sufficient for submission to the jury, these facts and circumstances developed by the testimony come into focus:
Mary Redfern and her deceased husband were engaged in a fight. The 17-year old son, John Henry, who was in another room, took no part in the fight until he was called by his mother. The fight had been going on for about an hour and a half. The deceased husband had bit Mary Redfern's finger, causing it to bleed profusely, so she said. She testified on crossexamination that he had slapped her in the face, had hit her on the head with a shovel, and was threatening her with a rifle. It is inferable that she was tiring of the fight and had had enough. She said she was mad. She called her son and told him "to get the rifle." He picked it up and according to his statement proceeded to fire the fatal shot. When interviewed by the officers a short while after the shooting, Mary Redfern made various conflicting statements about how the deceased met his death. These conflicting statements, voluntarily made at the scene of the homicide, tend to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate herself. This line of testimony was substantive evidence of substantial probative force, tending to show consciousness of guilt. State v. Yearwood, 178 N.C. 813, 101 S.E. 513; State v. Spencer, 176 N.C. 709, 97 S.E. 155; State v. Rowe, 98 N.C. 629, 4 S.E. 506; State v. Broughton, 29 N.C. 96; State v. Swink, 19 N.C. 9; Wigmore on Evidence, Third Ed., Sections 173, 273, and 277.
The series of events and circumstances disclosed by the evidence was sufficient to sustain the inference that Mary Redfern *327 incited, or at least encouraged, her son to commit the homicide under circumstances making her guilty as a principal in the second degree.
We have not overlooked the testimony of Mary Redfern to the effect that when she called her son and told him to get the rifle, she did not tell him to shoot the deceased but to take the rifle back to the home of their landlord, Mr. Hargett, where it belonged. However, it is noted that this exculpatory statement of Mary Redfern was made by her as a witness in her own defense. It is no part of her previous extrajudicial statement made to the officers and related by them as witnesses for the State.
The case was properly submitted to the jury as to both defendants.
No error.