State v. Butler

153 S.E.2d 477 (1967) 269 N.C. 733

STATE
v.
Azor BUTLER.

No. 171.

Supreme Court of North Carolina.

March 29, 1967.

T. W. Bruton, Atty. Gen., Wilson B. Partin, Jr., Staff Atty., Raleigh, for the State.

Clifton W. Paderick, Clinton, for defendant appellant.

PLESS, Justice.

G.S. § 108-73.12d provides, in pertinent part, "Whoever knowingly obtains * * * continuation of assistance * * * when such person is ineligible and not entitled to such assistance * * * by means of failing to disclose a material fact * * * or, whoever * * * aids and abets any person to * * * a continuation of assistance * * * when such person is ineligible and not entitled to such assistance * * * by failing to disclose a material fact or by any fraudulent scheme, plan, device, or impersonation, shall be guilty of a misdemeanor * * *."

The defendants were charged with conspiring to violate this statute.

In State v. Shipman, 202 N.C. 518, 163 S.E. 657, the Court succinctly states the law of conspiracy: "``The gist of a criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme—the agreement to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means—and it is said that the crime is complete without any overt act having been done to carry out the agreement' * * * the consummation of the agreement without any overt act constitutes or may constitute the agreement. If two or more persons conspire to do a wrong, this conspiracy is an act ``rendering the transaction a crime,' without any step taken in pursuance of the conspiracy. * * * One who enters into a criminal conspiracy, like one who participates in a lynching, or joins a mob to accomplish some unlawful purpose, forfeits his independence and jeopardizes his liberty, for, by agreeing with another or others to do an unlawful thing, he thereby places his safety and security in the hands of every member of the conspiracy. The acts and declarations of each conspirator, done or uttered in furtherance of the common, illegal design, are admissible in evidence against all. ``Every one who enters into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others, in furtherance of such common design.' * * * But to make the acts and declarations of one person those of another, or to allow them to operate against another or others, it must appear that there was a common interest or purpose between them and that said acts were done, or said declarations uttered, in furtherance of the common design, or in execution of the conspiracy."

A conspiracy may be proven by circumstantial evidence. "The existence of the unlawful agreement need not be proven by direct testimony. It may be inferred from other facts, and the conditions and circumstances surrounding. 11 Am.Jur. 548, 570. ``The results accomplished, the divergence of those results from the course which would ordinarily be expected, the situation of the parties, and their antecedent relations to each other, together with the surrounding circumstances, and the inferences legitimately deducible therefrom, furnish, in the absence of direct proof, and often in the teeth of positive testimony to the contrary, ample ground for concluding that a conspiracy exists.'" State v. Andrews, 216 N.C. 574, at 577, 6 S.E.2d 35, at 37.

Considering the State's evidence in the strongest light, it shows that Azor Butler had been told by Mrs. Grace Vann of the Sampson County Welfare Department that: "If there was a change at all in his situation that he was to report it; that is, if he moved his domicile anywhere that was to be reported." While we are considering only the case as to Azor Butler, since Lugenia and Carl Butler did not appeal, the evidence shows a guilty knowledge on the part of Lugenia in that while Azor was in prison she told Miss Carol Reaves in response to her question as to whether Azor was residing in the home, or where he was, "He is in Fuquay Springs visiting relatives, and has been for a week".

Carl Butler said that when the first check came after Azor had gone to prison, Lugenia Butler and his father had gone to see Azor and asked him if the money was still supposed to come; that Azor said to cash the checks, save the money, and send it to him (Azor) when he asked for it. Later, when Carl's father had become ill, Carl again went to see Azor who told him to use some of the money to help pay his father's bills, for his sickness. Azor, himself, corroborated Carl in the above statements.

While all the defendants denied knowing that it was wrong to cash the checks, the evidence quoted above is ample to be submitted to the jury and to permit a finding by the jury that the three knew that cashing the checks and using the money was a violation.

Several of the exceptions noted by the defendant are more applicable to the defendants who did not appeal than to Azor. Those that justified consideration on behalf of Azor are as follows: Mrs. Roy Gunter of the Welfare Department testified that after she had learned that the checks had been cashed while Azor was in prison, "I came back to my office and went over the record carefully, etc., and got our manual out and reviewed the policy with regard to recipient fraud. We have a policy in the public assistance manual which refers to what we call recipient fraud. And I reviewed the record carefully and it seemed to me there had been some evidence of violation." Upon objection by the defendant, the Court sustained it "as to any conclusions". We are of the opinion that the subject of these exceptions constituted no substantial prejudice as to the defendant, and they are not sustained.

In the charge the Judge read the statute upon which the indictment was based and then pointed out the material parts which applied to the charge against the defendants. The defendant contends that this amounted to a peremptory instruction of guilt as to at least one of the defendants and constituted error. This instruction was in keeping with the requirements of G.S. § 1-180 which makes it the duty of the Judge to declare and explain the law of the case.

The defendant further excepts to the failure of the Court to refer to Azor Butler's illiteracy in his charge; to the Court's failure to define "concealment", and to the statement of contentions on behalf of the State. However, none of these matters were called to the attention of the Court at the time and the defendant did not request additional contentions or statements of the law. "If the defendants desired fuller or more specific instructions than those given in the general charge, they should have asked for them and not waited until the verdict had gone against them. Simmons & Ward v. Davenport, 140 N.C. 407, 53 S.E. 225. And if their contentions were not properly stated, the defendants should have called the attention of the court to any omissions or errors so that they could have been supplied or corrected. Danville [Lumber &] Manufacturing Co. v. Gallivan Building Co., 177 N.C. 103, 97 S.E. 718." Sherrill v. Hood, Comr. of Banks, 208 N.C. 472, 181 S.E. 330.

A careful perusal of the charge discloses that the evidence and contentions of the defendant were fairly and sufficiently stated and we find no part which constitutes error.

Upon consideration of all exceptions and authorities cited on behalf of the defendant, we are of the opinion that the evidence of his guilt supports the verdict, and that he has had a fair trial in which there was

No Error.