It was the defendant who arranged the trip. First, he engaged the cab, ostensibly for a trip to North Wilkesboro. Then, he directed the driver to go by the junk yard where the friend was waiting in semi-darkness. Next, it was the defendant who, under the pretext of going for a drink of liquor, diverted the cab from the main highway onto a lonely, deserted side road along which Penley, without previous warning, was struck with a piece of iron pipe similar to pipe found later at the junk yard where the friend was picked up. Thus, the events leading up to the assault fall into a pattern which clearly indicates concert between the defendant and his friend and where this appears each may be found equally guilty. S. v. Gibson, 226 N.C. 194, 37 S.E.2d 316; S. v. Williams, 225 N.C. 182, 33 S.E.2d 880; S. v. Hart, 186 N.C. 582, 120 S.E. 345; S. v. Kendall, 143 N.C. 659, 57 S.E. 340; S. v. Jarrell, 141 N.C. 722, 53 S.E. 127. It is settled law that all who are present (either actually or constructively) at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose, to the knowledge of the actual perpetrator, are principals and are equally guilty. S. v. Jarrell, supra ( 141 N.C. 722); S. v. Gaston, 73 N.C. 93; S. v. Hoffman, 199 N.C. 328, 154 S.E. 314.
There was in each case evidence of acts of assistance during commission of the crime. State v. Holland, 234 N.C. 354, 67 S.E.2d 272 (1951); State v. William, s, 225 N.C. 182, 33 S.E.2d 880 (1945); State v. Cloninger, 149 N.C. 567, 63 S.E. 154 (1908); State v. Jarrell, 141 N.C. 722, 53 S.E. 127 (1906). State v. Ham, supra, is persuasive authority for nonsuiting the case against defendant Scott. Ham was a prosecution against five defendants for murder which occurred when two groups of women engaged in a general brawl.
"When the bystander is a friend of the perpetrator and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement." Wharton, Criminal Law, 12th Ed., 246, quoted with approval in State v. Hargett, supra; State v. Holland, 234 N.C. 354, 67 S.E.2d 272; State v. Williams, 225 N.C. 182, 33 S.E.2d 880; and State v. Jarrell, 141 N.C. 722, 53 S.E. 127. State v. Gaines, supra, is distinguishable in that there the State offered exculpatory statements by the defendant and by the perpetrator of the offense, by which statements it was deemed bound. It is elementary that, for the purpose of ruling upon a motion for judgment of nonsuit, evidence for the State is taken to be true, every reasonable inference favorable to the State is to be drawn therefrom and discrepancies therein are to be disregarded.
As to lack of sufficient evidence being presentedby the State to warrant the Court's submitting to thejury the charge of murder against this Appellant: 117 S.C. 470, 109 S.E. 119; 80 S.E. 482. William T. Jones, Esq., Sol., of Greenwood, for Respondent, cites: As to sufficient evidence to warrant submittingto the jury the charge of murder against Appellant, Wright: 251 S.C. 556, 164 S.E.2d 439; 225 N.C. 182, 22 S.E.2d 880. As to the Trial Judge's properly refusing to grantthe Appellant, Horace Wright, Jr. a change of venue: 110 S.C. 273, 96 S.E. 416; Art III, Sec. 2, S.C. Const., Sec. 10-311, S.C. Code of Laws, 1962.
S. v. Hoffman, 199 N.C. 328, 154 S.E. 314; S. v. Baldwin, 193 N.C. 566, 137 S.E. 590. 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. S. v. Williams, 225 N.C. 182, 33 S.E.2d 880; S. v. Johnson, 220 N.C. 773, 18 S.E.2d 358; S. v. Hoffman, supra; S. v. Cloninger, 149 N.C. 567, 63 S.E. 154; S. v. Jarrell, 141 N.C. 722, 53 S.E. 127, 8 Ann. Cas. 438; S. v. Chastain, 104 N.C. 900, 10 S.E. 519."
The import of this decision is that it makes no difference who commits the physical act of throwing the brick if two persons are present, each aiding and abetting the other in doing so and that rule would apply in this case. In S. v. Holland, 234 N.C. 354, 67 S.E.2d 272 the court quoted the following from S. v. Williams, 225 N.C. 182, 33 S.E.2d 880: "`Though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement, and in contemplation law this was aiding and abetting.'"
An aider and abettor is defined in our decisions as one who advises, counsels, procures or encourages another to commit a crime. S. v. Hart, supra; S. v. Holland, supra; S. v. Williams, 225 N.C. 182, 33 S.E.2d 880; S. v. Ham, supra. In the case of S. v. Birchfield:, supra, Ervin, J., speaking for the Court, said: "The mere presence of a person at the scene of a crime at the time of its commission, does not make him a principal in the second degree; and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crimes or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes necessary to its consummation."
In State v. Epps, supra, 583, the Supreme Court of North Carolina held that an abettor is one who gives aid and comfort or who either commands, advises, instigates or encourages another to commit a crime or who, by being present, by words or conduct assists or incites another to commit the criminal act. In State v. Williams, 225 N.C. 182, 33 S.E.2d 880, decided May, 1945, relying on Wharton's Criminal Law, 12th Ed., Vol. 1, Chap. 9, Sec. 246, the North Carolina Court said that when the bystander is a friend of the perpetrator and knows that his presence will be regarded by the perpetrator as an encouragement and protection, the presence alone may be regarded as encouragement and in contemplation of law this amounted to aiding and abetting. In State ex rel. Martin v. Tally, supra, the Supreme Court of Alabama stated that the words "aid" and "abet" comprehend all assistance rendered by acts or words of encouragement or support or presence to render assistance, if it becomes necessary.
See also S. v. Birchfield, 235 N.C. 410, 70 S.E.2d 5. And in S. v. Williams, 225 N.C. 182, 33 S.E.2d 880, it is stated: "Though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement, and in contemplation of law this was aiding and abetting." S. v. Holland, supra.
He gave her the gun, and she shot Owens, and killed him. We are of opinion that there was plenary evidence to carry the case to the jury that Grace Wingler was guilty of second degree murder, and that Calvin Miller was present as a co-principal aiding and abetting Grace Wingler and equally guilty. S. v. Jarrell, 141 N.C. 722, 53 S.E. 127; S. v. Williams, 225 N.C. 182, 33 S.E.2d 880; S. v. Johnson, 226 N.C. 671, 40 S.E.2d 113; S. v. Holland, 234 N.C. 354, 67 S.E.2d 272; S. v. Moore, 236 N.C. 617, 73 S.E.2d 467. The assignment of error No. 11 is without merit. The appellants' assignment of error No. 22 is based upon their exceptions Nos. 66, 67, 68, 69, 70 and 71. Grace Wingler testified as a witness for herself, and Duel Miller testified as a defense witness.