{ "id": 8555262, "name": "STATE OF NORTH CAROLINA v. GEORGE LYLES, JR.", "name_abbreviation": "State v. Lyles", "decision_date": "1973-10-24", "docket_number": "No. 7312SC570", "first_page": "632", "last_page": "636", "citations": [ { "type": "official", "cite": "19 N.C. App. 632" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "172 S.E. 2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560837 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0217-01" ] }, { "cite": "188 S.E. 2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548528 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0256-01" ] }, { "cite": "165 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557806 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0077-01" ] }, { "cite": "185 S.E. 2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570160 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0142-01" ] }, { "cite": "184 S.E. 2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "280 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570226 ], "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0154-01" ] }, { "cite": "147 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563110 ], "opinion_index": 0, "case_paths": [ "/nc/266/0734-01" ] }, { "cite": "153 S.E. 2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565060 ], "opinion_index": 0, "case_paths": [ "/nc/270/0025-01" ] }, { "cite": "120 S.E. 2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567053 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0042-01" ] }, { "cite": "167 S.E. 2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "275 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558809 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/275/0378-01" ] }, { "cite": "117 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626348 ], "opinion_index": 0, "case_paths": [ "/nc/253/0562-01" ] }, { "cite": "132 S.E. 2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574035 ], "opinion_index": 0, "case_paths": [ "/nc/260/0228-01" ] }, { "cite": "156 S.E. 547", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "549" } ], "opinion_index": 0 }, { "cite": "200 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618224 ], "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/200/0190-01" ] }, { "cite": "174 S.E. 2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563176 ], "year": 1970, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0641-01" ] }, { "cite": "192 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552774 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0527-01" ] } ], "analysis": { "cardinality": 567, "char_count": 10271, "ocr_confidence": 0.565, "pagerank": { "raw": 3.4196146078786074e-07, "percentile": 0.8785490968778489 }, "sha256": "9d9196989111aa95b297e4e14d85a4721c55888373851a8d89d679f29fe0e83f", "simhash": "1:5d5c35dbc76c4c91", "word_count": 1783 }, "last_updated": "2023-07-14T21:32:34.966448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Hedrick concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE LYLES, JR." ], "opinions": [ { "text": "MORRIS, Judge.\nAppellant\u2019s assignments of error can be separated into two groups. Assignments of error Nos. 1, 3 and 4 depend upon appellant\u2019s contention that he was not present at the scene of the crime. In assignment of error No. 2 appellant contends that the trial judge commented on the evidence in contravention of G.S. 1-180.\nThe first group of assignments of error may be summarized as depending entirely upon the theory that defendant\u2019s conduct in driving the \u201cgetaway car\u201d does not amount to his being present at the scene of the robbery. If defendant were not present, he contends, he would be entitled to a judgment as of nonsuit and a directed verdict, for the evidence produced would be insufficient to go to the jury on the offense as charged. Likewise, were he not present, the court\u2019s instruction to the jury concerning aiding and abetting would be prejudicial, for an aider or abettor must be present. Appellant further urges that he was entitled to an instruction on the lesser included offense of accessory before the fact inasmuch as the distinction between a principal \u2014 including an aider and abettor \u2014 and an accessory before the fact is that the former is. present at the time of the offense whereas the latter is not.\nAs we have stated, these assignments of error depend entirely upon the contention of defendant that he was not present at the time of the armed robbery. Thus, a favorable determination of these assignments would require a holding on-o\u00fcr part that the driver of a getaway car who had driven th\u00e9 robbers to within a block and a half of the premises robbed and was apprehended while parked 100 feet behind the premises with his headlights off and his motor running \u2014 is not present at the scene of the robbery. We do not so hold.\nAs this Court stated in State v. Wiggins, 16 N.C. App. 527, 192 S.E. 2d 680 (1972), the distinction between a principal and an accessory before the fact \u2014 abolished in some jurisdictions\u2019 \u2014 remains in force in North Carolina with regard to general felonies, including armed robbery. The distinction has been set forth in State v. Benton, 276 N.C. 641, 653, 174 S.E. 2d 793 (1970).\n\u201c \u2018A principal in the first degree is the person who actually perpetrates the deed either by his own hand or through an innocent agent.\u2019 (Emphasis added.) Any other who is actually or constructively present at the place of the crime either aiding, abetting, assisting or advising in its commission, or is present for that purpose, is a principal in the second degree. (Citations omitted.) In our law, however, \u2018the distinction. between principals in the first and second degrees is a distinction without a difference;\u2019 Both are principals and equally guilty. State v. Allison, 200 N.C. 190, 194, 156 S.E. 547, 549; accord, State v. Gaines, 260 N.C. 228, 132 S.E. 2d 485; State v. Peeden, 253 N.C. 562, 117 S.E. 2d 398. An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded on encouraged the principal to commit it. State v. Benton, 275 N.C. 378, 167 S.E. 2d 775; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580; Miller, supra, \u00a7 76; 22 C.J.S. Criminal Law \u00a7 90 (1961).\nThus, ordinarily, the only distinction between a principal and an accessory before the fact is that the latter was not present when the crime was actually committed.\u201d\nIn order to determine whether a defendant is present, the court must determine whether \u201che is near enough to render assistance if need be and to encourage the actual perpetration of the felony.\u201d State v. Wiggins, supra, at 531.\nThe general principle has been stated that\n\u201c \u2018One 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 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.\u2019 State v. Price, 280 N.C. 154, 158, 184 S.E. 2d 866, 869.\u201d Id., at 530-531. (Emphasis added.)\nThe facts of the case before us are clearly sufficient to bring it within the general rule established by Benton and Wiggins, supra. The driver of a getaway car is present at the scene of the crime, and he is a principal rather than an accessory before the fact.\nTherefore, there is no error in the denial of the motions for judgment as of nonsuit and for directed verdict, nor is there error in the court\u2019s instructing the jury on aiding and abetting.\nLikewise, there was no error in the failure of the trial court to instruct the jury on the lessor included offense of accessory before the fact. It is a well-established principle that the court is not required to submit the question of guilt on a lesser included offense where all the evidence tends to establish the greater charge, and there is no evidence of the lesser charge. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969); State v. Wilson, 14 N.C. App. 256, 188 S.E. 2d 45 (1972).\nAs his final assignment of error, appellant urges that the trial court erred in its charge to the jury in that it failed to state the evidence necessary to explain the applicable law except in the contentions of the State. It is appellant\u2019s position that this amounts to a comment on the evidence in contravention of G.S. 1-180. We do not agree. It is not error for the trial judge to instruct the jury in terms of the State\u2019s contentions where the record discloses evidence from which inferences drawn by the court could legitimately, fairly and logically be drawn by the jury. State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970).\nNo error.\nJudges Campbell and Hedrick concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ ". Attorney General Morgan, by Assistant Attorney General \u00c9atman, for the State.", "'Assistant Public Defender Neill Fleishman for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE LYLES, JR.\nNo. 7312SC570\n(Filed 24 October 1973)\n1. Criminal Law \u00a7\u00a7 9, 10 \u2014 aider and abettor \u2014 accessory before fact \u2014 driver of getaway car\nThe driver of a getaway car who drove robbers to within a block and a half of the premises robbed and who was apprehended while parked 100 feet behind those premises was present at the scene of the robbery and was thus a principal rather than an accessory before the fact.\n2. Criminal Law \u00a7 115; Robbery \u00a7 5 \u2014 armed robbery \u2014 failure to submit accessory- before the fact\nIn a prosecution of defendant for armed robbery as an aider and abettor, the trial court did not err in failing to submit the lesser included offense of accessory before the fact where the evidence showed that defendant was the driver of the getaway car.\n3. Criminal Law \u00a7 118 \u2014 instructions \u2014 contentions of State\nIt is not error for the trial court to instruct the jury in terms of the State\u2019s contentions where the record discloses evidence from which inferences drawn by the court could legitimately, fairly and logically be drawn by the jury.\nAppeal from Brewer, Judge, 5 March 1978 Session of Cumberland County Superior Court.\nDefendant Lyles was charged, with two codefendants not involved in this appeal, with the armed robbery of Mack\u2019s Shell Self Serve in Fayetteville.\nEvidence for the State is briefly summarized as follows:\nLarry Absher, the night attendant at Mack\u2019s, observed Houston and Webster (codefendants who entered a guilty plea) get out of a late model orange car one and a half to two blocks from the station. They proceeded on foot up the street toward the station, and upon entering the attendant\u2019s cubicle, Houston pulled a sawed off shotgun from beneath his coat. The two took money from the cash register, and they took an automatic pistol and some money from Absher\u2019s person.\nMelvin Webster testified that Lyles and Houston came to his trailer together on the night of the robbery in an orange Dodge \u201cSuper Bee.\u201d Lyles asked Webster if he would like to \u201cgo out and make some money.\u201d As the three men cruised around Fayetteville in the orange Super Bee \u2014 with Lyles at the wheel \u2014 they discussed robbing two places other than Mack\u2019s, but decided otherwise because of the risk involved. When they decided to rob Mack\u2019s, Lyles let Houston and Webster out of the car about a block and a half from the station. Houston took the shotgun from the car and put it under his coat.\nWebster\u2019s testimony from this point was substantially the same as that of Absher concerning the taking of the money \u00e1t gun point. He further testified that they ran from the station with a car in close pursuit. They approached Lyles parked in a trailer park 100 feet to the rear of the store and attempted to get in the car. However, the car in pursuit blocked Lyles, so Houston and Webster continued to run.\nDeputy Sheriff Hollingsworth testified that:\nHe was on patrol the morning of the robbery, and he noticed suspicious activities in the station, i.e., three men in the attendant\u2019s cubicle. As he made a U-tum and came back to investigate, two of the men ran from the.cubicle toward the trailer park behind the station. The deputy followed them in his car and blocked the orange Super Bee which was parked with its headlights off and its motor running. Deputy Hollings-worth\u2019s partner pursued the two men as they fled. Hollingsworth picked up a shotgun one of the fleeing men had; dropped and arrested the man behind the wheel of the car whom he identified in court as defendant Lyles.\nDeputy Sheriff Capps was then allowed over defendant\u2019s objection to read into evidence a sworn statement by Webster which was substantially identical to Webster\u2019s testimony. The court gave the jury a proper instruction for corroborative evidence.\nAt the close of State\u2019s evidence, defendant\u2019s motion for judgment as of nonsuit was denied. Motion to reduce the charge to accessory before the fact was also denied.\nDefendant presented no evidence, and he was convicted by the jury of aiding and abetting in robbery with a firearm.\n. Attorney General Morgan, by Assistant Attorney General \u00c9atman, for the State.\n'Assistant Public Defender Neill Fleishman for defendant appellant." }, "file_name": "0632-01", "first_page_order": 656, "last_page_order": 660 }