Appeal by defendants from Brown, Judge. Judgments entered 23 April 1981 in Superior Court, Craven County. Heard in the Court of Appeals 3 March 1982.
Hill, Judge. Judges Wells and Becton concur.
The State's evidence tends to show that Richard Dale Long, a former employee of the Rusher Meat Company, first delivered meat to the Craven County Hospital in July 1979. Defendant Marshall was employed by the hospital and, as a part of his job, took the deliveries of meat and signed the invoices. Long testified that "during the summer of 1980 [defendant Marshall] asked me if I would like to pick up some extra money . . . holding back some meat . . . at the hospital." Long didn't agree to do this until ten or eleven months later. On about fifteen occasions, Long "held back" approximately one-half of the meat intended for the hospital and delivered it to various places in the Rusher truck. Long testified, "[defendant Marshall] come up and told me what he wanted and he took part of it off the truck and then what he didn't want he put in the corner of the truck and give me a hundred dollars. Then [defendant Marshall] would sign the invoice." The first time, outside the hospital, defendant Marshall introduced defendant Jackson to Long as "the guy that would be getting the meat each week." Long, in the Rusher truck, then followed defendant Jackson up a dirt road where the latter put the meat in his car. He saw defendant Jackson about ten times after this first delivery. Long further testified that he was paid $100, either by defendant Marshall or by defendant Jackson, for
each shipment of meat that he "took somewhere other than the hospital."
Louis William Hanson, also a former employee of the Rusher Meat Company, testified that he diverted meat intended for Craven County Hospital about eight times between August 1977 and August 1978. He stated, "[defendant Marshall] would give me a $100 to do what he wanted me to do with it. He wanted me to take some of it to the hospital and the other part went somewhere else. . . . I used basically the same routine that Ricky Long testified about."
A special agent with the State Bureau of Investigation, Melinda Kaufin, testified that from October 1977 through December 1980, 31,126 pounds of rib eye steaks valued at $119,820.35 were missing from the Craven County Hospital. Defendants presented no evidence.
Defendant Jackson's Appeal
In his first argument, defendant Jackson argues that the trial judge erred by failing to instruct the jury "that it must find that the defendant shared the criminal intent of the perpetrator in order to convict the defendant as an aider and abettor."
To constitute one a principal in the second degree, he must not only be actually or constructively present when the crime is committed, but he must aid or abet the actual perpetrator in its commission. (Citations omitted.) 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 (citations omitted), and renders assistance or encouragement to him in the perpetration of the crime. (Citations omitted.) While mere presence cannot constitute aiding and abetting in legal contemplation, a bystander does become a principal in the second degree by his presence at the time and place of a crime where he is present to the knowledge of the actual perpetrator for the purpose of assisting, if necessary, in the commission of the crime, and his presence and purpose do, in fact, encourage the actual perpetrator to commit the crime. (Citations omitted.)
State v. Kendrick, 9 N.C. App. 688, 690, 177 S.E.2d 345, 347 (1970), quoting State v. Birchfield, 235 N.C. 410, 413-14, 70 S.E.2d
5, 7-8 (1952). The intent to aid the perpetrator "does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrator[s]." State v. Sanders, 288 N.C. 285, 291, 218 S.E.2d 352, 357 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. ...