State v. Smith ( 1977 )

239 S.E.2d 610 (1977) 34 N.C. App. 671

STATE of North Carolina
v.
Herbert A. SMITH, Jr. and Billy A. Garris.

No. 7726SC428.

Court of Appeals of North Carolina.

December 21, 1977. Certiorari Denied and Appeal Dismissed January 11, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Patricia Hodulik, Raleigh, for the State.

W. Faison Barnes, Charlotte, for defendants-appellants.

Certiorari Denied and Appeal Dismissed by Supreme Court January 11, 1978.

VAUGHN, Judge.

Defendants contend that the court erred in failing to grant their motions for nonsuit on the charges of unlawful burning. Defendants correctly argue that the burden was on the State to prove (1) the fire, (2) that it was of incendiary origin, and (3) the connection of the accused with the crime. State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549 (1951). They primarily argue that the State failed to show that the fire was of incendiary origin.

The State is, of course, entitled to every favorable inference that arises from the evidence, direct or circumstantial. The evidence was sufficient to permit the jury to find that defendants decided to burn their business to collect the proceeds from the fire insurance policy. They tried to recruit Greene to start the fire. They acquired a large quantity of lacquer thinner that was not then needed for any legitimate purpose. On the day of the fire, they moved the lacquer thinner from where it had been stored to the area where the damage from the fire was concentrated. The drum was turned over, and the spigot was loosened. The tenant, Long, was made to move on the day of the fire because, as defendant Smith told him, the building was "going up." They gave the employee Greene the afternoon off. Less than an hour before the fire was started, Smith called Greene and asked if he had an alibi because things were ready to "go down."

Based upon his professional examination of the crime scene, about which he testified in considerable detail, Lane, an expert in the field of arson investigation, was of the opinion that the fire was intentionally set. We conclude that the evidence, taken in the light most favorable to the State, was sufficient to take the case to the jury on the charges of unlawful burning. State v. Moore, 262 N.C. 431, 137 S.E.2d 812 (1964); State v. Clark, 173 N.C. 739, 91 S.E. 372 (1917); State v. Caron, 26 N.C.App. 456, 215 S.E.2d 878 (1975), aff'd, 288 N.C. 467, 219 S.E.2d 68, cert. den., 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 794. In summary, we will repeat what was said in State v. Moses, 207 N.C. 139, 141, 176 S.E. 267, 268 (1934):

"The State's evidence in this case is sufficient to establish a motive and an opportunity for the defendant to commit the crime, that the fire was of an incendiary origin, and many other damaging circumstances tending to show defendant's guilt. However, it is not the fact of motive, or of opportunity, or of incendiary origin of fire, or of any other single circumstance taken by itself, but it was all of these circumstances, considered as a whole and in their relation to each other, that made it incumbent upon the court to submit this case to the jury. These related circumstances likewise warranted the jury in deciding the issue against the defendant. S. v. Clark, 173 N.C. 739, 91 S.E. 372.

When each circumstance going to make up the evidence relied upon depends upon the truth of the preceding circumstance, circumstantial evidence may be likened unto a chain, which is no stronger than its weakest link; but, as in this case, when there is an accumulation of circumstances which do not depend upon each other, circumstantial evidence is more aptly likened to the bundle of twigs in the fable, or to several strands twisted into a rope, becoming, when united, of much strength."

Defendants contend that it was error to allow the arson expert, Lane, to state that, in his opinion, the fire was of incendiary origin. We must overrule the exception. The opinion was based on the expert's own examination of the premises. He testified in detail about what he found and the basis for his opinion. The only pertinent fact about which the witness had no personal knowledge was the location of the drum of lacquer thinner immediately after the fire. That fact, which was brought out by other testimony, was made a part of the hypothetical question. Unlike the witnesses in Keith v. Gas Co., 266 N.C. 119, 146 S.E.2d 7 (1966), Lane did not base his opinion on an hypothesis not supported by any evidence. The expert was properly allowed to give his opinion. State v. Moore, supra; State v. Reavis, 19 N.C.App. 497, 199 S.E.2d 139 (1973).

Defendants contend that their motions for nonsuit on the conspiracy charges should have been allowed. The question is, therefore, whether there is evidence from which the jury could infer that defendants unlawfully concurred in an agreement to do an unlawful act. State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967). The evidence, as previously discussed, clearly supports the inference that there was a union of wills between Smith and Garris to burn the property. The evidence here is clear and direct. Generally, a conspiracy must be proven by a number of indefinite acts which, standing alone, mean little but when put together permit an inference that a conspiracy had been formed. State v. Puryear, 30 N.C. App. 719, 228 S.E.2d 536 (1976), cert. den., 291 N.C. 325, 230 S.E.2d 678. Closely related to the assignment of error on the nonsuit question are defendants' exceptions relating to the admission of extrajudicial statements of the alleged co-conspirators against each other. We first note that counsel on appeal did not represent defendants at trial and that objections to most of the testimony were not taken at trial or, if taken, were waived by the admission of testimony of similar import. Evidence so admitted is not the proper subject for assignment of error on appeal. State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975), mod., 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1206. We have, nevertheless, reviewed the appropriate assignments of error and find them without merit. Generally they relate to statements made to Greene by one defendant when he was not in the presence of the other. One who joins in a conspiracy places his security in the hands of every other member of the conspiracy. The acts and declarations of each conspirator in furtherance of the common illegal plan are admissible against all. State v. Butler, supra.

It is true, of course, that there must be proof of the conspiracy if declarations of co-conspirators are to be admitted. "Consideration of the acts or declarations of one as evidence against the co-conspirators should be conditioned upon a finding: (1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended. [sic]" State v. Conrad, 275 N.C. 342, 348, 168 S.E.2d 39, 43 (1969). Because of the very nature of the offense, the courts recognize the difficulty in proving the formation and execution of the plan and allow wide latitude in the order in which the pertinent facts are offered into evidence. If at the close of the evidence "every constituent of the offense charged is proved, the verdict rested thereon will not be disturbed." State v. Thomas, 244 N.C. 212, 214, 93 S.E.2d 63, 65 (1956). Here the State offered evidence tending to show the existence of the conspiracy. Greene's testimony related acts and declarations of the defendants in furtherance of the common design after it was formed and before it ended. Greene also testified as to his own acts and declarations in the presence of one or more of the conspirators. The testimony was properly admitted.

Defendants' able counsel on appeal has brought forward other assignments of error. We have carefully considered them and conclude that they fail to disclose prejudicial error at trial.

No error.

MORRIS and CLARK, JJ., concur.