Appeal by defendants from Brown, Judge. Judgment entered 12 May 1981 in Superior Court, Carteret County. Heard in the Court of Appeals 3 March 1982.
Morris, Chief Judge. Judges Hedrick and Vaughn concur.
Defendant Anson Jacobs argues three assignments of error. Defendant Hamp Jacobs presents seven assignments, four of which are brought forward. We will first consider the contentions
of the defendant Hamp Jacobs, then those of codefendant Anson Jacobs.
Defendant Hamp Jacob's Appeal
We call defendant's attention to the requirements of the North Carolina Rules of Appellate Procedure. Rule 28(b)(3) requires that in appellant's brief each question shall be separately stated, followed immediately by a reference to the assignments of error and exceptions pertinent to the question identified by the pages of the Record on which they appear. The fact that we consider the questions on their merit rather than dismissing the appeal is not to be taken as any indication that counsel can expect this charitable treatment in the future.
Defendant argues that the court committed prejudicial error in allowing the state to join his case for trial with that of Anson Jacobs, because the state's motion for joinder came too late. He asserts, citing the case of State v. Moore, 41 N.C. App. 148, 254 S.E.2d 252 (1979), that the motion was required to have been made at arraignment.
Defendants were charged with crimes of the same class, growing out of the same criminal transaction. Consolidation of the trials was proper. State v. Mourning, 4 N.C. App. 569, 167 S.E.2d 501 (1969). The motion for joinder made at the beginning of trial was also in apt time. See State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976). Moore is inapposite, as it dealt with joinder of cases pending against the same defendant and is not authority for the proposition that a motion to consolidate the trials of more than one defendant must be made at arraignment.
Defendant next contends that the court erred in submitting to the jury the issue of his guilt over motion to dismiss, as there was insufficient evidence of his commission of the offenses charged. He maintains that no evidence was adduced to show that anyone but John Haskett fired on the Pinto station wagon, but Raymond Graham, Jr.'s testimony belies that position. Moreover, a defendant who enters into a common design for a criminal purpose is deemed a party to every act done by others in furtherance of such design. State v. Lovelace, 272 N.C. 496, 158 S.E.2d 624 (1968). The trial judge charged that
for a person to be guilty of a crime, it is not necessary that he himself do all of the things necessary to constitute the crime.
If two or more persons act together with a common purpose to commit an assault with a deadly weapon with intent to kill inflicting serious injury, or to discharge a firearm into an occupied vehicle, each of them is held responsible for the acts of the other done in the commission of the assault with a deadly weapon with intent to kill inflicting serious injury, or discharging a firearm into an occupied vehicle.
There was plenary evidence that Hamp Jacobs joined Haskett in arranging the meeting at the Tram Road, carrying guns to the place of ambush, and lying in wait, and that he fired the initial shot. Though the evidence suggests that Haskett actually wounded James Graham, defendant could be found equally guilty of the shooting. See State v. Smith, 221 N.C. 400, 20 S.E.2d 360 ...