State v. Price

Annotate this Case

184 S.E.2d 866 (1971)

280 N.C. 154

STATE of North Carolina v. Henry Lee PRICE, Jr.

No. 149.

Supreme Court of North Carolina.

December 15, 1971.

*868 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Burley B. Mitchell, Jr., and Staff Atty. Charles A. Lloyd, Raleigh, for the State.

Robert F. Rush, Charlotte, for defendant.

LAKE, Justice.

In considering a trial court's denial of a motion for judgment of nonsuit, the evidence for the State, considered in the light most favorable to it, is deemed to be true and inconsistencies or contradictions therein are disregarded. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608; State v. Overman, 269 N.C. 453, 153 S.E.2d 44. Evidence of the defendant which is favorable to the State is considered, but his evidence in conflict with that of the State is not considered upon such motion. State v. Greene, 278 N.C. 649, 180 S.E.2d 789; State v. Vincent, supra. The question for the court is whether, when the evidence is so considered, there is reasonable basis upon which the jury might find that an offense charged in the indictment has been committed and the defendant is the perpetrator, or one of the perpetrators, of it. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679.

*869 By the terms of G.S. § 14-87 an attempt to rob another of personal property, made with the use of a dangerous weapon, whereby the life of a person is endangered or threatened, is, itself, a completed crime and is punishable to the same extent as if the property had been taken as intended. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569. Such attempt occurs when the defendant, with the requisite intent to rob, does some overt act calculated and designed to bring about the robbery, thereby endangering or threatening the life of a person. State v. Spratt, supra. "`In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in the commission thereof. Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.' 8 R.C.L. 279." State v. Parker, 224 N.C. 524, 31 S.E.2d 531.

Considered in accordance with the above stated principles, the evidence in the record is amply sufficient to justify a jury in finding that Walker entered the store with the intent to rob Lowery, struck him in the head with a blackjack, a dangerous weapon, for the purpose of accomplishing the intended robbery and thereby en dangered his life. Thus, the evidence of the State is sufficient to show that the offense charged in the indictment was committed.

The remaining question is whether the evidence is sufficient to show that the defendant was a perpetrator of it. One who procures or commands another to commit a felony, accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinity for the purpose of aiding and abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon the completion of the offense, is a principal in the second degree and equally liable with the actual perpetrator. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Sellers, 266 N.C. 734, 147 S.E.2d 225. By its express terms G.S. § 14-87 extends to one who aids and abets in an attempt to commit armed robbery. The State's evidence, considered as above stated, is ample to support a finding by a jury that the defendant so participated in the attempt to rob Lowery. The present case is not distinguishable from State v. Sellers, supra.

The motion for judgment of nonsuit was, therefore, properly denied.

No error.