State v. McCullough , 244 N.C. 11 ( 1956 )

92 S.E.2d 389 (1956) 244 N.C. 11

STATE
v.
John Rosemand McCULLOUGH, Ray Link and Henry Ledwell.

No. 147.

Supreme Court of North Carolina.

May 2, 1956.

William B. Rodman, Jr., Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

W. H. Childs, Sr., Lincolnton, R. G. Cherry, O. A. Warren, Gastonia, and Kemp B. Nixon, Lincolnton, for defendants.

DENNY, Justice.

We shall not undertake a seriatim discussion of the 126 assignments of error based on the 146 exceptions set out in the record.

The first questions for determination are these: (1) Did the court below commit error in refusing to quash the bill of indictment? (2) Was the State's evidence sufficient to withstand the motion made by each defendant for judgment as of nonsuit?

The motion to quash the bill of indictment on the ground that the General County Court of Lincoln County has exclusive original jurisdiction of the misdemeanors charged therein is without merit. G.S. § 7-64 provides: "In all cases in which by statute original jurisdiction of criminal actions has been, or may hereafter be, taken from the superior court and vested exclusively in courts of inferior jurisdiction, such exclusive jurisdiction is hereby divested, and jurisdiction of such actions shall be concurrent and exercised by the court first taking cognizance thereof." This statute is applicable to Lincoln County.

The defendants assign as error the refusal of the court below to sustain their motion for judgment as of nonsuit.

The defendants contend that since the defendant Ledwell was only a witness and not a party defendant in the former trial referred to in the evidence, his testimony in that trial was not admissible against him in the present trial. Conceding, but not deciding, that such evidence was admissible, it was admitted, and properly so, against the defendant Ledwell only. This being so, if all the evidence offered by the State, including that admitted against Ledwell, is insufficient to sustain the charge of conspiracy, it is unnecessary to determine whether or not the evidence admitted against Ledwell was admissible.

The statements made by Ledwell in the former trial can be considered against him only in determining whether the evidence offered by the State was sufficient to carry the case to the jury on the charge of conspiracy. "A ``conspiracy' is the unlawful concurrence of two or more persons in a wicked scheme—the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way by unlawful means." State v. Whiteside, 204 N.C. 710, 169 S.E. 711, 712; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. Parker, 234 N.C. 236, 66 S.E.2d 907; State v. Hedrick, 236 N.C. 727, 73 S.E.2d 904.

Direct proof of the charge of conspiracy is rarely obtainable. But to establish such a charge, the evidence or acts relied upon, when taken together, must point unerringly to the existence of a conspiracy. State v. Whiteside, supra; State v. Wrenn, 198 N.C. 260, 151 S.E. 261.

Here we have no evidence against Ledwell except his own statements at the former trial, which cannot be considered against the defendants Link and McCullough. Furthermore, when the statements are considered against Ledwell, they do not connect him with the delivery of this particular beer to Link on 7th November, 1955. In fact, the State's evidence tends to show that whatever beer Ledwell turned over to the defendant McCullough to deliver in his truck, he directed its delivery to Catawba County and not to Lincoln County. On the other hand, there is nothing in the statements that McCullough made to the Highway Patrolmen to connect Ledwell with the transportation of the beer found in McCullough's truck. Moreover, Ledwell not being present when McCullough made his statements to the patrolmen, had he implicated Ledwell, such evidence would not have been admissible to establish the conspiracy. As to Link, it is true McCullough said he had delivered beer to Link on three previous occasions, but he did not identify Link as the person who directed him to do so. The defendant Link denied knowing anything about the present or previous deliveries of beer. While such denial was only contradictory of McCullough's statement and did not affect its admissibility, we do not think the State's evidence was sufficient to support the charge of conspiracy. It follows, therefore, that the defendant's motion for judgment as of nonsuit as to the charge of conspiracy should have been allowed as to each of the defendants. State v. Wrenn, supra.

As to the second count, which charges the defendants with the unlawful transportation of beer pursuant to the conspiracy, it is our opinion that the evidence is insufficient to sustain the conviction as to the defendants Link and Ledwell of the substantive offense charged in this count. However, we hold the evidence to be sufficient to sustain the verdict on this count as to the defendant McCullough. "On failure of proof as to conspiracy accused may still be convicted of the substantive offense under an indictment charging both." 15 C.J.S., Conspiracy, § 90, p. 1135; Kelly v. United States, 6 Cir., 258 F. 392, 169 C.C.A. 408, certiorari denied 249 U.S. 616, 39 S. Ct. 391, 63 L. Ed. 803. McCullough's statements to the Highway Patrolmen to the effect that he owned the truck used by him in the transportation of the beer; that he had in his truck sixty cases of beer which he was directed to deliver to Link; that his truck was not registered for the purpose of transporting beer as required by law, and that he had no "bill of lading or anything else for the beer," are sufficient to sustain the conviction as to him on the substantive offense charged in the second count. G.S. § 18-66. The fact that the second count states that the substantive offense was committed pursuant to the conspiracy, will be treated as surplusage. No overt act is essential to the establishment of the crime of conspiracy. State v. Hedrick, 236 N.C. 727, 73 S.E.2d 904; State v. Davenport, supra; State v. Whiteside, supra; State v. Wrenn, supra; 15 C.J.S., Conspiracy, § 36, p. 1059 et seq. Neither was the establishment of a conspiracy to prerequisite to a conviction of the substantive offense charged in the second count in the bill of indictment. Moreover, in the trial below, the court charged the jury that on the second count the jury might find one or more of the defendants guilty or not guilty. In our opinion, the defendant McCullough has had a fair trial, free from prejudicial error, on the substantive offense charged in the second count of the bill of indictment.

The remaining assignments of error, in our opinion, present no prejudicial error that would justify a new trial as to the defendant McCullough. Therefore, the judgment entered below will be reversed as to the defendants Link and Ledwell on both counts and as to the defendant McCullough on the first count, but upheld as to the defendant McCullough on the second count.

Reversed on both counts as to defendants Link and Ledwell.

Reversed on first count as to defendant McCullough.

No Error as to defendant McCullough on second count.