Defendant appeals from judgments of Clark, J., 16 March 1981 Criminal Session, Cumberland Superior Court.
Huskins, Justice. Justice Britt dissenting in part. Chief Justice Branch and Justice Exum join in this dissent.
Defendant first assigns as error the failure of the indictment to specify that the kidnapping was without the victim's consent. We have held this term that such a contention has no merit.
The term 'kidnap,' by itself, continues to have a precise and definite legal meaning under G.S. 14-39(a), to wit, the unlawful seizure of a person against his will. . . . In short, common sense dictates that one cannot unlawfully kidnap or unlawfully restrain another with his consent. This being so, we hold that the indictment adequately alleged the essential elements of kidnapping.
circumstances, it would not favor justice to allow defendant to escape merited punishment upon a minor matter of form.
State v. Sturdivant, 304 N.C. 293, 310-11, 283 S.E.2d 719, 731 (1981) (emphasis in original).
Defendant's second assignment of error is that the evidence fails to support his kidnapping conviction in that the State did not prove the theory charged in the indictment: asportation of the victim to facilitate the commission of the felony of armed robbery. Defendant contends that since the evidence shows the crime of armed robbery was complete at the time the victim was taken from the service station to a point on I-95, the kidnapping was for the purpose of facilitating flight, not for the purpose of facilitating armed robbery. Therefore, according to defendant, there is a fatal variance between indictment and proof. Defendant relies on State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890, cert. denied, 444 U.S. 874, 62 L. Ed. 2d 102, 100 S. Ct. 156 (1979), where we held that evidence which showed a kidnapping for the purpose of facilitating a rape would not support a kidnapping conviction upon an indictment charging kidnapping to facilitate flight. Defendant argues in the instant case that the evidence shows he kidnapped the victim to facilitate his escape.
Faircloth involved a factual situation similar to the instant case. The gravamen of the Faircloth decision was that the evidence failed to prove the crime charged. The purposes specified in G.S. 14-39(a) are not mutually exclusive. A single kidnapping may be for the dual purposes of using the victim as a hostage or shield and for facilitating flight, or for the purposes of facilitating the commission of a felony and doing serious bodily harm to the victim. So long as the evidence proves the purpose charged in the indictment, the fact that it also shows the kidnapping was effectuated for another purpose enumerated in G.S. 14-39(a) is immaterial and may be disregarded.
So it is here. Defendant kidnapped Thomas Lee Thompson for the purpose of facilitating the armed robbery and also for the purpose of facilitating flight. Thus the evidence proved the crime charged in the indictment. Although defendant contends that the crime was "complete" when Hyman pointed his pistol at Thompson and attempted to take property by this display of force, the fact that all essential elements of a crime have arisen does not
mean the crime is no longer being committed. That the crime was "complete" does not mean it was completed. See State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 54 L. Ed. 2d 493, 98 S. Ct. 638 (1977). There being no variance between indictment and proof, the assignment of error is overruled.
As his third assignment of error, defendant challenges the sufficiency of the evidence to support his conviction of assault with a deadly weapon with intent to kill inflicting serious injury. This charge was submitted on the theory that defendant aided and abetted Johnny Hyman, the trigger man who actually shot Thompson. Defendant contends the evidence fails to show he had any prior knowledge that Hyman intended to shoot Thompson.
One who actually perpetrates a crime by his own hand is guilty as a principal in the first degree. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). A person who is actually or constructively present at the scene of a crime and aids, abets, or advises in its commission, or who is present for that purpose to the knowledge of the perpetrator, is a principal in the second degree. State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980); State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980). The communication of intent to aid if needed may be inferred from the aider's actions and from his relation to the actual perpetrator. State v. Hargett, 255 N.C. 412, 121 S.E.2d 589 (1961).
From the evidence adduced at trial, the jury very easily could have inferred that defendant had the requisite criminal intent and that such intent was communicated to Hyman, the principal in the first degree. The evidence strongly indicates that these two roving robbers left New York with a loaded .38 caliber pistol and began wending their way south. At some point, they came into possession of a credit card bearing the name of Robert E. Clowes, which they used at least once to purchase gas. The two conferred over whether Wright's Texaco "looked like a good hit." They acted in concert to rob the station, passing the pistol back and forth as necessary to guard Thompson. There was no discussion over what to do with Thompson; one of the defendants merely told him they'd drive down the road a short way and drop him off. As Hall drove, he insulted and intimidated Thompson. Hall stopped the car after checking to see there was no traffic nearby. When Hyman shot Thompson, Hall waited for Hyman to
reenter the car, and they drove away together, leaving Thompson to die beside the road. It is ludicrous to say that the jury could not reasonably infer that Hall knew Hyman intended to shoot the victim. The evidence overwhelmingly supports the inference that Hall did know Hyman's intentions and acted in concert with him at all times. The felonious assault charge against Hall was properly submitted to the jury. Compare State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5 (1952).
Defendant's fourth assignment of error stems from the trial court's refusal to instruct the jury on the lesser included offense of assault with a deadly weapon inflicting serious injury.
A trial court must submit a defendant's guilt of a lesser included offense of the crime charged in the bill of indictment when and only when there is evidence to sustain a verdict of guilty of the lesser offense. State v. Jones, 304 N.C. 323, 283 S.E.2d 483 (1981); State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976). When the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element, no instruction on a lesser included offense is required. State v. Drumgold, 297 N.C. 267, 254 S.E.2d 531 (1979).
The State's evidence in this case tends to show Hyman shot Thompson in the back from a distance of a few feet. The only legitimate inference arising from the evidence is that Hyman intended to kill Thompson. Therefore, were the same evidence adduced at the trial of Hyman, no instruction on the lesser included offense of assault with a deadly weapon inflicting serious injury would be necessary or proper.
Although Hall incredibly contends he had no advance notice of Hyman's intentions, this is not determinative of the question of his guilt as an aider or abettor. Hall was present at the scene and assisting Hyman as necessary. From Hall's aid in perpetrating the robbery and continued association and assistance after the shooting, his intent to aid during the shooting, and communication of such intent to Hyman, may be inferred. State v. Hargett, 255 N.C. 412, 121 S.E.2d 589 (1961). This satisfies the requisites of ...