State v. Horton , 5 N.C. App. 141 ( 1969 )

Bbitt, J.

Defendant first assigns as error the failure of the trial court to grant her motion for judgment as of nonsuit.

It is well settled that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State; and when so considered, if there is more than a scintilla of competent evidence to support the allegations in the warrant or bill of indictment, it is the duty of the court to overrule the motion and to submit the case to the jury. Moreover, on such motion, the State is entitled to the benefit of every reasonable inference which may be fairly drawn from the evidence. State v. Davenport, 227 N.C. 475, 42 S.E. 2d 686; State v. Gordon, 225 N.C. 757, 36 S.E. 2d 143; State v. Scoggins, 225 N.C. 71, 33 S.E. 2d 473; State v. Herndon, 223 N.C. 208, 25 S.E. 2d 611.

In State v. Gallimore, 272 N.C. 528, 158 S.E. 2d 505, in an opinion by Higgins, J., it is said: “ ‘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 wav by unlawful means. (Citing many cases.)’ State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334; State v. McCullough, 244 N.C. 11, 92 S.E. 2d 389. A conspiracy to commit a felony is a felony. State v. Brewer, 258 N.C. 533, 129 S.E. 2d 262; State v. Aber-nethy, 220 N.C. 226, 17 S.E. 2d 25. The crime is complete when the agreement is made. State v. Davenport, 227 N.C. 475, 42 S.E. 2d 686; State v. Whiteside, 204 N.C. 710, 169 S.E. 2d [sic] 711; State v. Knotts, 168 N.C. 173, 83 S.E. 972. Many jurisdictions follow the rule that one overt act must be committed before the conspiracy becomes criminal. Our rule does not require an overt act.”

Although at least two persons are required to create a conspiracy, it is not required that more than one person be prosecuted for the offense. State v. Gallimore, supra.

Defendant strenuously contends that the State’s case depended primarily upon the testimony of Robert Lee James and Carl Deal, they being named in the indictment as defendant’s co-conspirators; that the testimony of James and Deal negatived the creation of a conspiracy. Specifically, defendant refers to their testimony to the effect that at no time did either of them intend to kill defendant’s husband, their only purpose being to get money from the defendant.

Conceding that a large part of the testimony given by James and Deal was exculpatory, the fact remains that from their testimony there could be gleaned “more than a scintilla” of evidence to support the allegations in the bill of indictment. When James talked with Deal over the telephone soon after defendant first contacted James, James told Deal that there was a woman in Statesville that wanted to get her husband killed. Thereafter, defendant and James met Deal at the airport in Charlotte. James had a .38 caliber pistol for which he purchased some bullets. In response to a direct question as to what he received the money for, James replied, “I received the money for doing just what we were talking about, to kill him.”

In their testimony, James and Deal stated that at no time did they have any intention of killing the defendant’s husband. The conversations and transactions between the defendant, James and Deal occurred during late April and early May 1967; it was following a bombing some five or six months later that James talked with the solicitor and police officers. The State contends that it is reasonable to infer that James and Deal “changed their tune” between the time they had the conversations and agreement with the defendant and the time of their conversations with law enforcement officers five or six months later and that it was for the jury to determine where the truth lay.

We have not attempted to recapitulate all of the pertinent testimony but hold that the evidence presented at trial was sufficient to withstand the motions for nonsuit. The assignment of error relating thereto is overruled.

The only other assignment of error brought forward and discussed in defendant’s brief relates to the trial judge’s instructions to the jury. We have carefully considered the instructions given and conclude that when they are considered contextually they are free from prejudicial error. The assignment of error is overruled.

The defendant received a fair trial, free from prejudicial error.

No error.

MallaRD, C.J., and Paricer, J., concur.