State v. Oliver

150 S.E.2d 445 (1966)

268 N.C. 280

STATE v. Monta OLIVER, Jr, James Hambright, Robert Stewart, Jr.

No. 253.

Supreme Court of North Carolina.

October 12, 1966.

*446 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Joel L. Kirkley, Jr., Charlotte, for defendant, appellant.

PER CURIAM.

There are nineteen assignments of error, most of which do not comply with the requirements of Rule 19(3), Rules of Practice in the Supreme Court. 221 N.C. 543. "`* * * (T)he very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is.' Steelman v. Benfield, 228 N.C. 651, 653, 46 S.E.2d 829, 831." State v. Reel, 254 N.C. 778, 119 S.E.2d 876. We have, however, examined the record carefully and find no prejudicial error in those assignments.

The question of nonsuit is properly presented. "In passing upon a motion for judgment of nonsuit in a criminal prosecution, the evidence must be considered in the light most favorable to the State, and the State is entitled to the benefit of every reasonable inference which may fairly be drawn from the evidence. * * * If there is more than a scintilla of competent evidence to support the allegations in the warrant or bill of indictment, it is the court's duty to submit the case to the jury." State v. Kelly, 243 N.C. 177, 90 S.E.2d 241.

"`A "conspiracy" is the unlawful concurrence of two or more persons in a wicked schemethe combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way by unlawful means.' * * * Direct proof of the charge of conspiracy is rarely obtainable. But to establish such charge, the evidence or acts relied upon, when taken together, must point unerringly to the existence of a conspiracy." State v. McCullough, 244 N.C. 11, 92 S.E.2d 389.

In the instant case there was not only circumstantial evidence of a conspiracy to commit armed robbery, but there was also direct proof of the existence of the conspiracy by an accomplice.

"`Everyone who does enter into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others, in furtherance of such common design.' State v. Jackson, 82 N.C. 565." State v. Kelly, supra.

"* * * (I)n order to render one who does not actually participate in the commission *447 of the crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement the perpetrators of the crime, or by his conduct made it known to such perpetrators that he was standing by to render assistance when and if it should become necessary." State v. Burgess, 245 N.C. 304, 96 S.E.2d 54.

The series of events disclosed by the evidence was sufficient to sustain the inference that defendant shared in the common purpose or design with the actual perpetrators, assisted, encouraged and rendered aid to them in the armed robbery.

The motions for nonsuit were properly overruled in both cases.

No error.