State v. Grier , 30 N.C. App. 281 ( 1976 )

227 S.E.2d 126 (1976) 30 N.C. App. 281

STATE of North Carolina
v.
Jeanette Martha GRIER.

No. 7619SC6.

Court of Appeals of North Carolina.

August 4, 1976. Certiorari Denied November 4, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. T. Lawrence Pollard, Raleigh, for the State.

Charles V. Bell, Raleigh, for defendant-appellant.

Certiorari Denied by Supreme Court November 4, 1976.

PARKER, Judge.

Defendant brings forward but one assignment of error, that the court erred in denying her motions for nonsuit. We find no error.

When viewed in the light most favorable to the State, the evidence would permit the jury to find the following: On 9 September 1974, Blackmon, Sellers, and Sanders met with defendant Grier in defendant's home in Charlotte. Sellers was armed and openly displayed his pistol. When Hutton arrived, Blackmon asked Hutton if he knew Agent Stout. Hutton denied knowing Stout. In defendant's presence, Blackmon grabbed Hutton and slammed him against the wall. Defendant asked Hutton about the license plate number of the car he was in earlier, apparently referring to the brown Ford Torino used by Stout. Still in defendant's presence, Blackmon pushed Hutton down on the couch, while Sellers passed his gun to Sanders and told Sanders to watch Hutton. Defendant then stated that Hutton "didn't have to tell them anything, they already knew who Albert Stout was." Later, dynamite, wire, and blasting caps were brought into defendant's home and were there openly displayed and discussed by Sellers and Blackmon. On several occasions during this period, defendant went with Sellers and Blackmon to another room in the house. During all of these events, Hutton was being guarded by the threatening display of a pistol held either by Sellers or by Sanders. Blackmon left defendant's residence, carrying the dynamite with him. Shortly thereafter defendant also left her residence, leaving her Buick automobile behind to be used by Sellers.

On these findings it is a legitimate inference which the jury might draw that the plan to dynamite Stout's car was conceived and a number of important steps toward carrying out the plan, including the assembling of the dynamite and accessory materials, were carried out in defendant's residence while she was present. Defendant must have been fully aware of what was taking place in her residence, yet she expressed no objection when dynamite was brought into her house, nor did she object at any time during the extended period while Hutton was being held under armed guard in her house. Indeed, she even participated in questioning Hutton when she asked him concerning the license plate on Stout's car. That question, and her later statement that they already knew Stout's identity, demonstrates that she was fully aware of the subject under consideration. While these events were occurring in her home, on several occasions she went with Sellers and Blackmon to other rooms in her house, outside of Hutton's sight and hearing. A reasonable inference may be drawn that on these occasions the three discussed what was then taking place in the house. Finally, it is a reasonable inference which the jury might draw that defendant intentionally left her automobile to be used by Sellers in carrying out missions vital to the successful completion of the criminal enterprise in which he, Blackmon, and Sanders were then engaged. A reasonable inference clearly arises from all of the evidence that defendant not only knew and acquiesced in what was being planned in her home, but that she actively participated in the planning and joined in the criminal enterprise there undertaken.

A conspiracy is an "agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way." State v. Parker, 234 N.C. 236, 241, 66 S.E.2d 907, 912 (1951). The offense is complete whenever the union of wills for the unlawful purpose is established; the conspiracy itself being the crime and not the execution of the deed. State v. Anderson, 208 N.C. 771, 182 S.E. 643 (1935). For one to be convicted of the crime of conspiracy, the State need not prove that the parties agreed in express terms to unite for the common illegal purpose. A mutual, implied understanding is sufficient to constitute the offense. State v. Smith, 237 N.C. 1, 74 S.E.2d 291 (1953). "Since the gravamen of the offense of conspiracy is the agreement or union of wills for the unlawful purpose, active participation in the planned criminal activity is not required to establish guilt. ``A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude toward an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.'" State v. Carey, 285 N.C. 497, 502, 206 S.E.2d 213, 218 (1974). "Direct proof of the charge is not essential, for such is rarely obtainable. It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy." State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933). Applying these principles, we find the evidence in this case clearly sufficient to withstand the motions for nonsuit on the charge of conspiracy.

We also find the evidence sufficient to survive the motions for nonsuit in the other two cases, in which defendant was charged as a principal with violations of G.S. 14-49(a) and G.S. 14-49.1. Defendant, as a party to the conspiracy, was equally guilty as a principal with the other participants in the commission of the crimes contemplated by the conspiracy. It makes no difference that defendant was not personally present when those crimes were committed, for "once a conspiracy is shown, each conspirator ``is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts are not intended or contemplated as a part of the original design.'" State v. Bindyke, 288 N.C. 608, 618, 220 S.E.2d 521, 528 (1975), quoting from State v. Smith, 221 N.C. 400, 405, 20 S.E.2d 360, 364 (1942). This principle, which has been stated with approval many times in decisions of our Supreme Court, was recently applied to sustain a conviction of first degree murder in a case in which the killing was committed in defendant's absence by defendant's co-conspirator while attempting to perpetrate an armed robbery, which was the object of the conspiracy. In that case the defendant was not present at the scene of the killing, and the case was submitted to the jury under instructions that they should find defendant guilty of first degree murder if they found that defendant had entered into the conspiracy and that his co-conspirator, while attempting to carry out the object of the conspiracy, shot and killed the victim. Our Supreme Court sustained the death sentence imposed. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975).

We are, of course, advertent to the decision of this Court in State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972), and to other cases following that decision, in which it was held that one conspirator, if not present at the scene so as to make him an aider and abettor, can not be held liable as a principal to the substantive crime committed in furtherance of the conspiracy by his co-conspirator, but could only be held as an accessory before the fact. See also: Note, "Criminal Conspiracy in North Carolina," 39 N.C. Law Review 422, at p. 451, et seq. However, we cannot reconcile the holding in State v. Wiggins, supra, with the decisions of our Supreme Court above cited, and those decisions must control our decision here.

No Error.

MORRIS and MARTIN, JJ., concur.