State v. Gallimore

158 S.E.2d 505 (1968) 272 N.C. 528

STATE of North Carolina
v.
Talton GALLIMORE, Jr.

No. 421.

Supreme Court of North Carolina.

January 16, 1968.

T. W. Bruton, Atty. Gen., James F. Bullock, Deputy Atty. Gen., for the State.

Barnes & Grimes, by Jerry B. Grimes, Lexington, for defendant appellant.

HIGGINS, Justice.

The first question of law presented by the appeal is the sufficiency of the bill of indictment in No. 13,410 to charge the crime of conspiracy. The objection is that at least one other conspirator, in addition to the defendant, should be named in the bill because of the nature of the crime. "A criminal 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 or 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, 1 A.L.R. 3d 1323; State v. Abernethy, 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. Whitesides, 204 N.C. 710, 169 S.E.2d 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.

After a conspiracy is formed, and before it has terminated, that is, while it is a "going concern", the acts and declarations of each conspirator made in furtherance of the object of the conspiracy are admissible in evidence against all parties to the agreement, regardless of whether they are present or whether they had actual knowledge of the acts or declarations. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Smith, 221 N.C. 400, 20 S.E. 2d 360; State v. Jackson, 82 N.C. 565. However, admissions made after the conspiracy has terminated are admissible only against the party who made them. Obviously, one person may not conspire with himself. State v. Raper, 204 N.C. 503, 168 S.E.2d 831; State v. Tom, 13 N.C. 569. The objection to the validity of the charge in No. 13,410 is directed to the failure of the bill to name any conspirator except the defendant Gallimore. The bill charges he conspired with others.

The record discloses that the State had information from Jimmy Shoureas and Ronald Riley that they and one Benny English had conspired with the defendant Gallimore to break and enter the described building and to steal the safe and its contents. At the time the bill was drawn, the Solicitor was in a position to disclose in the bill the names of these three persons with whom the defendant had conspired. The decision of this and other courts are not altogether in agreement on the question whether an indictment for conspiracy must give the name or names of other conspirators, if known, or whether it is sufficient to charge the defendant (by name) and add "another or others", known or unknown. The general rule is an indictment should contain all essential elements of the crime charged to the end the defendant may prepare his defense and be protected against another prosecution on the same charge. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849. In State v. Van Pelt, 136 N.C. 633, 49 S.E. 177, 68 L.R.A. 760, Judge Connor used this language:

"We, however, fully approve the language of Shaw, C. J., in Com. v. Hunt, 45 Mass. 111. `From this view of the law respecting conspiracy we think it an offense which especially demands the application of that wise and humane rule of the common law that an indictment shall state with as much certainty as the nature of the case will admit the facts which constitute the crime intended to be charged. This is required to enable the defendant to meet the charge and prepare for his defense, and, in case of an acquittal or conviction, to show by the record the identity of the charge, so that he may not be indicted a second time for the same offense.'"

Subsequent to the decision in Van Pelt, this Court, in State v. Lewis, 142 N.C. 626, 55 S.E. 600, 7 L.R.A.,N.S., 669, held that an indictment was good which charged that Zeke Lewis and others conspired to break and enter the Anson County jail for the purpose of lynching one John V. Johnson, a prisoner being held therein. The Court cited as authority for holding the count sufficient: Revisal § 3250 (now G.S. § 15-148); State v. Capps, 71 N.C. 93, 96, and State v. Hill, 79 N.C. 656, 658.

In Capps, the defendant was indicted for the larceny of ten kegs of gun powder, the property of W. W. Grier and another. The evidence showed the property belonged to Grier and Alexander, a partnership. The Court held the indictment valid on the ground that Grier was one of the owners and the act referred to (now G.S. § 15-148) provided: "* * * Any indictment wherein it shall be necessary to state the ownership of any property * * * which shall belong to or be in the possession of more than one person * * * partners in trade, joint tenants or tenants in common, it shall be sufficient to name one of such persons and state such property belonged to the person so named and another or others as the case may be." The Court sustained the indictment on the authority of the statute.

In State v. Hill, supra, the defendant was indicted in a two count bill. The first count charged malicious injury to a cow belonging to Lee Samuel. The count was held defective because it failed to allege the cow was injured by reason of malice toward the owner. The second count charged that the defendant did unlawfully and on purpose maim and injure livestock, the property of Lee Samuel and others, whose names were unknown. The livestock mentioned as the subject of the injury was alleged to be the property of Lee Samuel and others while the testimony showed the ox (beaten and injured) belonged to Lee Samuel alone. "This is a fatal variance not cured by the provisions of Bat.Rev. Ch. 33, Sec. 65." (Now G.S. § 15-148).

Neither in Capps nor in Hill was there a charge of conspiracy. In each case the property involved was described in the bill as belonging to a person and another or others. These cases are poor, if any, authority for the Court's holding the indictment against Lewis for having conspired with others was a valid charge. The Superior Court held the charge bad. Clark, C. J., wrote the opinion, holding the indictment valid. Connor, J., concurred "* * * with much hesitation. I do not concur in some of the reasons which are given to sustain it. * * *" Brown, J., wrote a dissenting opinion.

Notwithstanding the insecure foundation upon which the opinion in Lewis rests, this Court, in two unanimous decisions, has followed Lewis by holding that "co-conspirators may be named in the bill or alleged to be unknown." State v. Davenport, supra and State v. Abernethy, supra. The holding in Lewis is cited as authority in 15 C.J.S. Commerce § 145(24) p. 1060 and 11 Am.Jur. 562.

In view of the foregoing background, we hold the conspiracy indictment in No. 13,410 meets the test of validity under the authorities cited. Judge Gwyn did not commit error in holding the indictment valid. However, we think the better practice is to name the conspirators in the bill if their identity is known. If unknown at the time the bill is submitted to the Grand Jury, the Solicitor should disclose their identity when ascertained and in time for counsel to complete his trial preparations. If the State fails to disclose the names of co-conspirators, the Court, on motion, should order them disclosed. We are advertent to the holding that a bill of particulars will not supply a fatal defect in a bill of indictment (State v. Thornton, 251 N.C. 658, 111 S.E.2d 901), but the defendant should know the identity of co-conspirators to the end that he may be prepared to defend himself against any statements they may have made or against any acts they may have committed while the conspiracy was active.

In this case the defendant was given a preliminary hearing five months before the trial. His present counsel represented him at that hearing. One month and 20 days before the actual trial, the officers, at the direction of Judge Gwyn, and in the presence of the Solicitor, made a full disclosure of the evidence upon which the State relied and which disclosed that Shoureas, Riley and English were participants in the conspiracy and in the commission of the substantive offenses charged in No. 13,411. This disclosure, for the purposes of trial preparations, was the equivalent of a bill of particulars. In view of the conspiracy, it was not necessary to show the defendant was present when the Kepley building was broken into, and the safe and its contents stolen in order to convict him of the substantive offenses charged in No. 13,411. State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5.

Judge Gwyn did not commit error in denying the motion for continuance and in submitting the charges to the jury. The other objections involve the admission or exclusion of evidence. Examination of these objections fails to disclose error. The defendant did not offer evidence and does not except to the Court's charge.

No error.