#### STATE v. EDDIE MOZINGO.

(Filed 31 October, 1934.)

1. Homicide B a—

Evidence that deceased was killed by a person lying in wait for tbe purpose is sufficient to sustain tbe State’s contention that tbe murder was murder in tbe first degree. O. S., 4200.

2. Homicide A c — Evidence held sufficient to he submitted to jury on charge of being accessory before the fact to crime of murder.

Evidence that defendant, for tbe purpose of freeing bimself of competition in tbe illegal sale of intoxicating liquors, procured another to kill deceased by shooting him from ambush while lying in wait, *is held*sufficient to be submitted to tbe jury in a prosecution as an accessory before the fact to tbe crime of murder, G. S., 4175, and sufficient to deny defendant’s prayers for special instructions.

*2483. Homicide G d—

Evidence of the relations between defendant and deceased for some time before the homicide *is held*competent in a prosecution of defendant as an accessory before the fact of the crime of murder.

4. Homicide H f — Seutence of defendant held in accord with statute, and objection thereto is not sustained.

Defendant was convicted as an accessory before the fact to the crime of murder and sentenced to life imprisonment. Thereafter the actual murderer was sentenced to thirty years imprisonment upon acceptance of his plea of guilty of murder in the second degree: *Meld,*defendant’s objection that his sentence was greater than that of the actual perpetrator of the crime cannot be sustained, since both sentences were authorized by statute. O. S., 4176, 4200.

Appeal by defendant from *Frizzelle, J.,*at June Term, 1934, of LeNoie.

No error.

The defendant in this action was convicted as an accessory before the fact to the murder of Bennie Mozingo, by Fred Wade, on 6 December, 1933, in Lenoir County, North Carolina.

From judgment that he be confined in the State’s Prison, at Raleigh, N. C., at hard labor, for the term of his natural life, the defendant appealed to the Supreme Court.

*Attorney-General Brummitt and Assistant Attorney-General SaaweTl for the State.*

*Wallace & White, J. Faison Thomson, Sutton & Greene, and Paul Fdmundson for defendant.*

Connor, J.

The defendant’s assignments of error on his appeal to this Court cannot be sustained.

All the evidence at the trial showed that the deceased, Bennie Mozingo, was shot from ambush and killed on the night of 6 December, 1933, while he was getting into his automobile, which he had parked in the woods near a highway in Lenoir County, and that the gun from which the fatal shots were fired was fired by a person who was lying in wait for the deceased in a clay hole, about 8 or 10 feet from his automobile. The deceased, who was a bootlegger, had just loaded his automobile with kegs of whiskey which had been stored in the woods by a confederate.

This evidence, which was admitted without objection by the defendant, was sufficient to sustain the contention of the State that the homicide was murder in the first degree. C. S., 4200. *S. v. Wiggins, 111*N. C., 813, 89 S. E., 58.

There was evidence tending to show that Fred Wade was the man who lay in wait for the deceased, and who shot and killed him from the clay hole. Fred Wade, as a witness for the State, testified that he *249went to tbe clay bole near wbicb tbe automobile of tbe deceased was parked witb a gun wbicb be found at tbe foot of an oak tree. It is true tbat be did not testify tbat be sbot tbe gun, but tbe inference from all tbe facts shown by bis testimony tbat be did sboot and kill tbe deceased witb tbe gun, as contended by tbe State, was almost irresistible.

There was also evidence offered by tbe State tending to show tbat tbe •defendant Eddie Mozingo, prior -to tbe shooting of tbe deceased, bad urged, counseled and procured Ered Wade to sboot and kill tbe deceased when be drove bis automobile from tbe highway into tbe woods to get tbe kegs of whiskey, wbicb tbe defendant knew bis confederate bad placed there for tbe deceased. There was also evidence tending to show tbat tbe defendant Eddie Mozingo was engaged in tbe business of manufacturing and selling intoxicating liquor in Lenoir and Wayne counties, and tbat be wished to conduct bis illegal business free from competition by tbe deceased, and for tbat reason bad procured Ered Wade to sboot and kill him when be went into tbe woods to get a supply of whiskey for sale in tbe territory in wbicb tbe defendant was selling whiskey.

All tbe evidence, both tbat offered by tbe State in support of its contentions and tbat offered by tbe defendant in support of bis contentions, was submitted to tbe jury, and properly so. There was no error in tbe refusal of tbe court to allow defendant’s motion for judgment as of nonsuit under tbe statute. C. S., 4643. *S. v. Jenkins,*182 N. C., 818, 108 S. E., *767.*

Tbe objections of tbe defendant to tbe admission of evidence tending to show tbe relations between tbe defendant and tbe deceased for some time before tbe homicide, and also -tending to corroborate testimony of witnesses for tbe State, to wbicb there were no objections by tbe defendant, were properly overruled. This evidence was so manifestly competent tbat defendant’s exceptions to its admission require no discussion.

Tbe exception of tbe defendant to tbe refusal of tbe court to instruct tbe jury as requested by tbe defendant cannot be sustained for tbe reason tbat there was evidence tending to show tbat Ered Wade sbot and killed tbe deceased as contended by tbe State, and tbat be did so upon tbe •counsel and procurement of tbe defendant.

Tbe instructions of tbe court to tbe jury to wbicb tbe defendant excepted involved propositions of law wbicb are well settled, and wbicb were applicable to tbe facts as shown by tbe evidence offered by tbe •State. There was certainly no reversible error in these instructions. Defendant’s exceptions are without merit, and need not be discussed.

It is stated in tbe brief filed for tbe defendant in this Court tbat after tbe defendant bad been convicted in this action by tbe jury and sentenced by tbe court to imprisonment for life, Ered Wade was arraigned on an indictment charging him witb tbe murder of Bennie Mozingo, *250and tbat upon sucb arraignment be tendered to tbe solicitor for tbe State a plea of guilty of murder in tbe second degree, wbicb plea was accepted by tbe solicitor, and tbat thereupon it was adjudged by tbe court tbat said Fred Wade be confined in tbe State’s Prison for a term of 30 years.

Tbe defendant complains tbat bis sentence as an accessory before tbe fact is for bis life, while tbe sentence for Ered Wade, tbe principal felon, is for only thirty years.

Without conceding tbat upon tbe facts shown by tbe record in this case there is just ground for this complaint, it is sufficient to say tbat both tbe judgment against tbe defendant and tbe judgment against Fred Wade are authorized by statute. C. S., 4176, and C. S., 4200. Tbe statute prescribing imprisonment for life upon a conviction as an accessory before tbe fact to tbe crime of murder was in force at tbe time tbe statute defining murder in tbe first degree and murder in tbe second degree, respectively, and prescribing tbe punishment upon a conviction of murder in tbe first degree as death, and tbe punishment upon a conviction of murder in tbe second degree as imprisonment for not less than two nor more than thirty years, was enacted. Tbe former statute has not been amended or repealed. It is now in full force and effect.

Tbe judgment in this action is affirmed.

No error.