
119 S.E.2d 213 (1961)
254 N.C. 450
STATE
v.
Leroy JONES.
No. 505.
Supreme Court of North Carolina.
April 12, 1961.
T. W. Bruton, Atty. Gen., Glenn L. Hooper, Jr., Asst. Atty. Gen., for the State.
Bryan & Bryan, Dunn, for defendant appellant.
WINBORNE, Chief Justice.
The indictment under which defendant is charged is framed in accord with the provisions of G.S. § 15-144.
This form of bill of indictment includes the charge of murder committed in the perpetration of a robbery, without a specific allegation or count to that effect. See State v. Smith, 223 N.C. 457, 27 S.E.2d 114.
The evidence offered upon trial of instant case tends to show that the homicide here involved was committed in the perpetration of robbery. And in stating the contentions of defendant the trial court told the jury, among other things, that "the defendant further argues and contends that he is not guilty of anything more than being an accessory to the crime of robbery, and, in fairness to him, that is all he is answerable to and all he is guilty of in this case." And in this respect the defendant requested the court to declare the law as to accessory before the fact of murder, and as to accessory after the fact of murder, and also as to accessory before the fact of robbery, and as to accessory after the fact of robbery. The record fails to show that the court complied with this request.
"Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or a less degree of the same crime * * *." G.S. § 15-170. The crime of accessory before the fact is included in the charge of the principal crime. State v. Bryson, 173 N.C. 803, 92 S.E. 698; State v. Simons, 179 N.C. 700, 103 S.E. 5. Not so, accessory after the fact. In the instant case Jones testified that he had assisted one Gibson in procuring a pistol for the avowed purpose of committing a robbery, and furnished his car for the use of Gibson, Thomas and Bailey in perpetrating the robbery, that he had an idea where they were going, and that he waited for them until *215 they returned. Where murder was committed in perpetration of the robbery, Jones' evidence is sufficient, taken as a whole, to support a verdict against him for counselling and procuring the commission of the felony, that is, of accessory before the fact to murder. People v. Peranio, 225 Mich. 125, 195 N.W. 670. The court should have charged the jury on this phase of the evidence, explained the legal meaning of accessory before the fact to murder, and instructed the jury that it might return such verdict as to the defendant Jones.
In this connection the statute, G.S. § 1-180, requires that the judge shall declare and explain the law arising on the evidence given in the case. This is a substantial right of litigants. Failure to observe it is error for which the injured party is entitled to a new trial. Such is the applicable principle in the instant case. So, let there be a
New trial.
BOBBITT, Justice (dissenting).
Whether a person, when indicted and tried for murder, may be found guilty as an accessory before the fact to the crime of murder, remains in doubt. State v. Dewer, 65 N.C. 572, and State v. Green, 119 N.C. 899, 26 S.E. 112, clearly say, "No." Under rather unusual factual situations, the decisions in Dewer and Green were overruled or the authority thereof somewhat impaired in State v. Bryson, 173 N.C. 803, 92 S.E. 698, and in State v. Simons, 179 N.C. 700, 103 S.E. 5. If and when an appropriate factual situation is presented, I think this Court should reconsider and clarify this subject.
G.S. § 14-5 defines an accessory before the fact as a person who counsels, procures or commands another person to commit a felony. Here, according to the State's evidence, the defendant, in person, committed the robbery and murder. As I read the record, the defendant did not testify that he counseled, procured or commanded the robbery or murder; and the defendant's testimony is all the testimony tending to show he was not present at the time and place of the commission of the robbery-murder. Hence, whatever view is taken as to the legal question discussed in the preceding paragraph, I do not think the evidence in this case warranted an instruction as to defendant's guilt as an accessory before the fact.
PARKER, J., joins in this dissenting opinion.
HIGGINS, Justice (dissenting).
Analysis of the evidence convinces me the question of accessory in any degree, either to murder or to robbery, does not arise upon this record. And regardless of contrary intimations in some of our cases, I am unable to agree that accessory is a lesser degree of the crime of murder. I vote no error.
