STATE
v.
HAM et al.
No. 721.
Supreme Court of North Carolina.
June 12, 1953.*348 Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Robert L. Emanuel of Staff, Raleigh, for the State.
Bowie & Bowie, West Jefferson, and Higgins & McMichael, Winston-Salem, for defendant appellants.
BARNHILL, Justice.
The defendants assign as error the refusal of the court below to sustain their demurrer to the evidence under G.S. § 15-173. However, the assignment is abandoned as to all the defendants other than Leonard Teaster. They, no doubt, upon reflection, perceived that the evidence, considered in the light most favorable to the State, tends to show that they, acting in concert, made an assault with deadly weapons upon the deceased and her companions, and that in the course of the assault the deceased was killed. Their own testimony tends to show there was a "free-for-all" affray during which Mrs. Church received the blow or blows upon her head which caused her death.
But the defendant Leonard Teaster insists that his demurrer to the evidence was well advised and should have been sustained. We are constrained to agree.
The testimony relied on by him tends to show that he remained in his automobile until the affray terminated. The State's eye witnesses, without exception, testified that he neither did nor said anything. He merely took his stand at the rear of his automobile and watched the fight.
All who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty. State v. Hoffman, 199 N.C. 328, 154 S.E. 314; State v. Holland, 234 N.C. 354, 67 S.E.2d 272.
An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime. State v. Hart, 186 N.C. 582, 120 S.E. 345; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; State v. Holland, supra.
To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary. State v. Holland, supra.
If the defendant Leonard Teaster is guilty at all, he is guilty under these principles of law enunciated in our decisions.
We are aware that some textbooks state that "when the bystander is a friend of the perpetrator, and knows that his *349 presence will be regarded by the perpetrator, as an encouragement and protection, presence alone may be regarded as an encouragement" and that in contemplation of law this is aiding and abetting. Wharton's Crim. Law, 12th ed., ch. 9, sec. 246; and that this statement has been quoted in some of our decisions. State v. Williams, supra; State v. Holland, supra. Yet we find no decision of this Court in which it is held that evidence tending to show that a bystander was a friend of the perpetrator and the perpetrator was aware of his presence, and nothing more, is sufficient to support a conviction.
The defendant Jean Teaster was aware of the presence of her husband, and we may assume that in all probability this defendant would have intervened had it appeared to him that his wife was getting the worst of the encounter. But this is a pure surmise based on our knowledge of human nature and not an inference of fact supported by evidence.
While the facts and circumstances in respect to this defendant appearing from the testimony are consistent with his guilt, they are likewise consistent with his innocence. And the guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with his guilt. Nor may the enforcement of the criminal law be made to rest upon surmise or conjecture.
The cases cited and relied on by the State are factually distinguishable. In those and like cases there was evidence of some fact or circumstance tending to establish the defendant's actual participation in the commission of the crime charged.
The court in the course of its charge instructed the jury in part as follows:
"On the other hand, gentlemen of the jury, the prisoners and each of them say and contend that if you are so satisfied beyond a reasonable doubt that they, or either of them, inflicted a rock wound on the deceased and the deceased died as the proximate result thereof, then under the law he or she would be guilty of murder in the second degree * * *"
Thus the court in effect stated to the jury that defendants conceded that if the jury found from the evidence that one or more of them struck the deceased with a rock and the deceased died as a proximate result thereof, then under the law she or they would be guilty of murder in the second degree.
There was no such formal admission entered of record. If counsel in their arguments to the jury so admittedand it does not so appearthen the defendants are not bound thereby. State v. Redman, 217 N.C. 483, 8 S.E.2d 623. The defendants had entered a plea of not guilty. They strenuously insisted throughout the trial that they fought only in their necessary self-defense and were guilty of no crime. At the same time, there was evidence tending to show that three of them struck the deceased; that two of them struck her with rocks; and that one of the three also struck her in the face with a bottle and another with something that looked like a battery cable. Hence the charge to which defendants except must be held for error on authority of State v. Redman, supra, and State v. Simmons, 236 N.C. 340, 72 S.E.2d 743.
Was this charge prejudicial? All the defendants were engaged in an affray in which deadly weapons were used. The homicide resulted in the death of the deceased so that the defendants, if guilty of an unlawful homicide, are all guilty in equal degree. State v. Beal, 199 N.C. 278, 154 S.E. 604, and cases cited. Three defendants struck deceased with rocks or some other weapon. Jean Teaster and Leonard Teaster did not. The jury convicted the three of murder in the second degree. At the same time it returned a verdict of guilty of manslaughter only as against the two Teasters. It would seem, therefore, that the jury gave heed to the instruction. In any event, the probability that it influenced the verdict is too strong for us to brush it aside as harmless error.
But the Attorney General stressfully insists that when the charge is read contextually it becomes apparent that this particular excerpt is not a correct transcript of what the judge said; that slight rephrasing *350 thereof would make it harmonize with statements contained in the preceding and succeeding paragraphs and at the same time constitute a correct statement of the law.
If this be true, then the time to correct the record and make it speak the truth was when the case on appeal was settled. The cause comes before us on a case agreed. We are bound thereby and must assume that it is a correct transcript of the proceedings in the court below. State v. Sutton, 230 N.C. 244, 52 S.E.2d 921; Mason v. Commissioners of Moore, 229 N.C. 626, 51 S.E.2d 6; State v. Robinson, 229 N.C. 647, 50 S.E.2d 740; State v. Wolfe, 227 N.C. 461, 42 S.E.2d 515.
The demurrer to the evidence entered by the defendant Leonard Teaster should have been sustained. As to him, the judgment entered must be reversed. As to the feme defendants, for the reasons stated, there must be a new trial.
As to defendant Leonard Teaster, reversed.
As to feme defendants, new trial.