State v. Davis

Stacy, C. J.,

after stating the case: Going directly to the exceptions, and considering them in the order above set out, we may say that the refusal of the trial court to grant the defendants’ request for a continuance on account of the illness of counsel, was a matter resting in his sound discretion and is not subject to review on appeal, except in case of manifest abuse. In re Bank, 202 N. C., 251, S. v. Rhodes, 202 N. C., 101; S. v. Sauls, 190 N. C., 810, 130 S. E., 848. No abuse of discretion has been made to appear on the present record. S. v. Riley, 188 N. C., 72, 123 S. E., 303. True, the right of confrontation carries with it the right of a fair opportunity to present one’s defense. S. v. Ross, 193 N. C., 25, 136 S. E., 193; S. v. Hardy, 189 N. C., 799, 128 S. E., 152. But tbe defendants seem to have been abundantly represented by other counsel.

Assignments based on defendants’ exceptions to the rulings of the court on their pleas in abatement, so far as they relate to the action of the grand jury, do not appear to have been brought forward and discussed in appellants’ brief. They are, therefore, deemed to be abandoned. Piner v. Richter, 202 N. C., 573; Cole v. Boyd, 175 N. C., 555, 95 S. E., 778; Gray v. Cartwright, 174 N. C., 49, 93 S. E., 432. “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.” Rule 28; In re Beard, 202 N. C., 661. The relation between appellants’ brief and the record in this respect has not been discovered even after a voyage of exploration, which we do not ordinarily make without guides. Cecil v. Lumber Co., 197 N. C., 81, 147 S. E., 735. The defendants may have concluded that these exceptions, in so far as they challenge the action of the grand jury, are without merit in view of what was said in 3. v. Levy, 200 N. C., 586, 158 S. E., 94.

"With respect to the venue of the offenses, it is sufficient to say that the indictments properly bring the case within the jurisdiction of the Superior Court of Buncombe County. U. S. v. Wells, 192 Fed., 870. “If the conspiracy be entered into within the jurisdiction of the trial court, the indictment will lie there, though the overt act is shown to have been committed in another jurisdiction, or even in a foreign country.” Hyde v. Shine, 199 U. S., 62.

It is generally held that the venue in an indictment for conspiracy may be laid in the county where the agreement was entered into, or in any county in which an overt act was done by any of the conspirators in furtherance of their common design. For' example, where a conspiracy is formed at sea, the venue may be laid in any county in which an overt act is committed by one of the conspirators on land. People v. Mather, 4 Wendell, 229, 21 Am. Dec., 122. The fact that the operations take place in different states, as the necessities of the conspirators may require, does not affect the jurisdiction of the state in which any or all of them reside, since “otherwise the offense would be committed with impunity.” Bloomer v. State, 48 Md., 521.

Furthermore, this position is not available to the defendants on their pleas in abatement, the jurisdiction of the court not being ousted on the face of the indictments. C. S., 4625. “If the defendant wishes to rely upon the fact that the offense was committed outside the State, he cannot move to quash or in arrest, but must prove the fact in defense under his plea of not guilty.” S. v. Long, 143 N. C., 671, 57 S. E., 349. Jurisdiction would be ousted upon stowing tbat the offense was committed out of the State. S. v. Buchanan, 130 N. C., 660, 41 S. E., 107. But the presumption is in favor of jurisdiction, and the burden is on the defendants. S. v. Barrington, 141 N. C., 820, 53 S. E., 663; S. v. Mitchell, 83 N. C., 674.

The motion for change of venue on the ground of local prejudice and to secure a fair trial, was also a matter resting in the sound discretion of the trial court. C. S., 471; Stroud v. U. S., 251 U. S., 15. The defendants have no just cause to complain at the action of the judge in this respect, for he did yield to their request to the extent of ordering a jury from another county. C. S., 473; S. v. Kincaid, 183 N. C., 709, 110 S. E., 612.

The plea to the jurisdiction of the court was likewise properly overruled. The special term had been duly called and the judge held a valid commission from the Governor. This was sufficient for him. S. v. Watson, 75 N. C., 136; S. v. Lewis, 107 N. C., 967, 12 S. E., 457; S. v. Turner, 119 N. C., 841, 25 S. E., 810; S. v. Wood, 175 N. C., 809, 95 S. E., 1050. Besides, the assignment of error based on this exception does not seem to be discussed in appellants’ brief. Doubtless after reading the authorities, it was decided to abandon the exception.

The appearance of counsel for the prosecution, other than the solicitor of the district, was a matter which the trial court necessarily had under its supervision. The solicitor at no time relinquished control of the case, nor does it appear that the assistance of other counsel was not requested or welcomed by him. But without regard to situations, different from the one now in hand, we hold that on the present record, the matter was in the control and sound discretion of the presiding judge. (This assignment of error, No. 7 in the record, is erroneously designated “Sixth” in appellants’ brief. We are then referred to the brief in another case for the argument on the point, but we are not able to find the argument in that brief.)

The defendants’ final objection before going to trial was motion to quash the indictments on the grounds of uncertainty, duplicity and failure to aver that the nonresident defendants were officers, agents or employees of the Central Bank and Trust Company. Motions of this kind are not favored. S. v. Knotts, 168 N. C., 173, 83 S. E., 972. “The courts usually refuse to quash on the application of the defendant where the indictment is for a serious offense, unless upon the plainest and clearest grounds; but will drive the party to a demurrer, or motion in arrest of judgment, or writ of error,” as the case may require, or as the defendant may be advised. S. v. Colbert, 75 N. C., 368; Chitty’s Crim. Law, 300.

The statute, 0. S., 4623, provides against quashal for mere informality or refinement, and judgments are no longer stayed or reversed for nonessential or minor defects. C. S., 4625; S. v. Beal, 199 N. C., 278, 154 S. E., 604. The modern tendency is against technical objections which do not affect the merits of the case. S. v. Hardee, 192 N. C., 533, 135 S. E., 345; Rudd v. Casualty Co., 202 N. C., 779. If the bill or proceeding contain sufficient matter to enable the court to proceed to judgment, the motion to quash for redundancy or inartificiality in statement is addressed to the sound discretion of the court. S. v. Knotts, supra. There was no error in refusing to quash the indictments on the grounds of duplicity and indefiniteness. S. v. Beal, supra.

The failure to aver that the nonresident defendants were officers, agents or employees of the Central Bank and Trust Company, if such he essential, would properly arise on demurrer or motion in arrest of judgment. S. v. Mitchem, 188 N. C., 608, 125 S. E., 190. But it is not conceded that such averment is necessary to the charge of conspiracy. A person may be held liable as a conspirator, even though he be incapable of committing the crime which is the object of the conspiracy, if it.appear that one or more of his coconspirators has the capacity to commit the offense. S. v. Switzer, 187 N. C., 88, 121 S. E., 43; S. v. Dowell, 106 N. C., 722, 11 S. E., 525; S. v. Jones, 83 N. C., 605; 5 R. C. L., 1063.

True, the statute, N. C. Code, 224(e), provides that: “Whoever being an officer, employee, agent or director of a bank, with intent to defraud or injure the bank, '. . . embezzles, abstracts, or misapplies any of the money, funds; credit, or property of such bank . . . shall be guilty of a felony,” etc. But on a charge of conspiracy to violate this statute, the position of the nonresidents would seem to be untenable. The gist of 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 way or by unlawful means. S. v. Ritter, 197 N. C., 113, 147 S. E., 733. Indeed, the conspiracy is the crime and not its execution. S. v. Wrenn, 198 N. C., 260, 151 S. E., 261. Compare Hyde v. U. S., 225 U. S., 347. “As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed.” S. v. Knotts, supra.

There is a distinction between the offense to be committed and the conspiracy to commit the offense. S. v. Brady, 107 N. C., 822, 12 S. E., 325. In the one, the corpus delicti is the act itself. In the other, it is the conspiracy to do the act. Note, 14 Ann. Gas., 156.

In People v. McKane, 143 N. Y., 455, 38 N. E., 950, the defendant was tried separately and convicted of an offense under the New York Penal Code similar in its essential features to the offense of conspiracy, upon allegation and proof that the defendant, who was not an election official, bad conspired with certain election officers to commit the offense, the Court, in affirming the conviction, said: “Tbe fact that be may, for some reason, be incapable of committing the same offense himself is not-material so long as it can be traced to him as the moving cause by instigating others to do what be could not do himself. This was tbe rule of tbe common law, and it has been applied to offenses like this under special statutes.”

The general rule is, that an indictment for conspiracy will lie if one or more of the conspirators be capable of committing the offense which is the object of the conspiracy, albeit some of the conspirators, standing alone, may be incapable of its commission. Gallagher v. People, 211 Ill., 158, 71 N. E., 842; S. v. Euegin, 110 Wis., 189, 85 N. W., 1046, 62 L. R. A., 700.

Little need be said about the objections to statements of alleged co-conspirators not made in furtherance of the common purpose. The rule is well established that upon showing the existence of a conspiracy, or facts from which it may be inferred, the acts and declarations of each conspirator, done or uttered in furtherance of the illegal design, are admissible in evidence against all. S. v. Turner, supra; People v. Cory, 148 Pac. (Cal.), 532. “Every one who enters into a common purpose or design is equally deemed in law a party to every act which bad 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.” S. v. Jackson, 82 N. C., 565. Indeed, when a conspiracy is established, everything said, done or written by any one of the conspirators, in execution or furtherance of the common purpose, is deemed to have been said, done, or written by each and all of them, and may be proved against any or all. 5 R. C. L., 1089.

But declarations of one of the alleged conspirators, not made in furtherance of the common design, would not be competent against the others. S. v. Ritter, supra; S. v. Dean, 35 N. C., 63. We do not find that tbe rulings on evidence in any way violated these principles.

Complaint is also made to the rulings of the court in admitting certain letters, the authenticity of which is challenged. That the authorship and genuineness of letters, typewritten or other, may be proved by circumstantial evidence, is fully established by the decisions. Hedgepeth v. Coleman, 183 N. C., 309, 111 S. E., 517 (anonymous typewritten communication). Tbe action of the court in admitting the letters in question was well within the rules of evidence.

Tbe most serious assignments, thus far considered, are those directed against the introduction of testimony concerning items not mentioned in the bill of particulars. It is the holding with us that when the solicitor files a bill of particulars, either at the request of the defendant or on order of the court, the State is restricted in its proof “to the items therein set down.” S. v. Wadford, 194 N. C., 336, 139 S. E., 608. The function of a bill of particulars is (1) to inform the defense of the specific occurrences intended to be investigated on the trial, and (2) to limit the course of the evidence to the particular scope of inquiry. Gruber v. Ewbanks, 199 N. C., 335, 154 S. E., 318; S. v. Brady, supra. That the judge was inattentive to this rule is pressed with vigor and stressfully contended for by the defendants. It could be wished that the record were clearer or that the ambiguity on this point might have been clarified when the case on appeal was settled.

However, there are several reasons why we cannot hold that the defendants have successfully handled the laboring oar on these exceptions: It is suggested by the Attorney-General that the items mentioned by the witnesses were but prodigal, included in totals, and necessarily had to be mentioned in order to eliminate them. And further that said items could, in no event, have had any appreciable effect upon the result.

The defendants filed two separate requests in writing for a bill of particulars. At the end of each request, this notation appears: “Motion partially denied.” The solicitor thereupon furnished “a list of the amounts of money, property and credits of the Central Bank and Trust Company alleged to have been abstracted, embezzled and misapplied by the defendants.”

From the testimony of the bookkeeper, N. H. Payne, a witness for the State, the following may be taken as typical of the record:

“Witness: My attention has been directed to a particular item. It is a total on the cash book that includes a cashier’s check payable to the Memphis Commercial Appeal in the sum of $50,000.

“Q. On the same date please state if included in the total of your cash book is another cashier’s check payable to Luke Lea in the sum of $50,000? (Objection; overruled; exception.) A. Yes sir.

“The defendants move the court to instruct the jury that the foregoing cannot be considered as evidence of guilt against the defendants in the case in which they are being tried.

“The court: Evidence about any transaction not included in the bill of particulars — you cannot return a verdict of guilty from whatever you may find, from this particular instance, but you may consider them as circumstances bearing out the particular counts included in the bill of particulars.”

Tbe meaning of this portion of the record is. not altogether clear, but considering it in the light of the court’s rulings, the requests of the defendants for limitation of the effect of the evidence, and the further fact that in the seventh count the defendants are charged with misapplications, pursuant to an unlawful conspiracy extending over a considerable period of time, it seems reasonable to conclude the understanding on all bands at the trial, acquiesced in by all, was that the solicitor should furnish the defendants a list of the items upon which be expected to press for conviction, but in undertaking to establish the alleged conspiracies, this list was not to be regarded as controlling in the introduction of the State’s evidence. This interpretation accords with the “partial denial” of defendants’ motions for bill of particulars, with the requests and rulings limiting the effect of the evidence, and harmonizes the record with the decisions. We, therefore, conclude, without impinging upon the rule announced in Wadford’s case, that fatal error has not been made to appear in these exceptions. Tbe burden is on appellants to show error, and they must make it appear plainly, as the presumption is against them. Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; In re Ross, 182 N. C., 477, 109 S. E., 365.

The defendants put their greatest trust in the demurrers interposed under C. S., 4643, at the close of the State’s evidence. They were content to rest their defense upon the protection which silence affords them; and it is conceded that if the prosecution has failed to prove its case, or if the gravamen of the offense has been made to rest only in the field of speculation, no crime has been established and the defendants are entitled to be discharged. S. v. Johnson, 199 N. C., 429, 154 S. E., 730; S. v. Swinson, 196 N. C., 100, 144 S. E., 555; S. v. Montague, 195 N. C., 20, 141 S. E., 285; S. v. Brackville, 106 N. C., 701, 11 S. E., 284. But if there be any evidence sufficient to prove the fact in issue, or to sustain the allegations of the indictment, the case is one for the jury. S. v. Carlson, 171 N. C., 818, 89 S. E., 30.

While terribly simple and quite elementary, it may not be amiss to observe that conspiracies, like other crimes involving fraud and deceit, may be proved by circumstantial evidence. S. v. Martin, 191 N. C., 404, 132 S. E., 16. Direct proof of the charges is not essential, for such is rarely obtainable, but they may be, and generally are, 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. S. v. Wrenn, supra. When resorted to by adroit and crafty persons, the presence of a common design often becomes exceedingly difficult to detect. Indeed, the more skillful and cunning the accused, the less plainly defined are the badges which usually denote their real purpose. Under such, conditions, 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. 5 E. O. L., 1088.

If four men should meet upon a desert, all coming from different points of the compass, and each carrying upon his shoulder a plank, which exactly fitted and dovetailed with the others so as to form a perfect square, it would be difficult to believe they had not previously been together. At least it would be some evidence tending to support the inference.

So in the instant case, when it is shown that four or five men, moving together, are given wide access to the assets and credits of a bank, in derogation of the ordinary rules of prudence, and in violation of the banking laws of the State, it affords more than a scintilla of proof that they were not acting in concord by accident. S. v. Shipman, 202 N. C., 518.

But it is said their purpose was to aid the bank rather than to injure it, and more or less plausible explanations are suggested in their behalf. On the other hand the evidence is susceptible of a different interpretation, and the jury has so decided after having heard fully the contentions of both sides. It is in evidence that the defendants had in mind a gigantic scheme for taking care of the “North Carolina situation.” Their method of operation is graphically described by Luke Lea, Jr., in a letter to the defendant Davis under date of 2 September, 1930, in which he suggests that they can purchase controlling interest in a Kentucky bank for $60,000, pay a 300% cash dividend, take the bonds of that bank and substitute “our issues instead.”

And so the prosecution contends that the same method of procedure was pursued in connection with the assets and credits of the Central Bank and Trust Company. They say that while ostensibly bona fide purchases of stocks and bonds may appear to have been made from Caldwell and Company, the real and ultimate purpose of the defendants was to take the certificates of deposits, cashier’s checks and other assets of the Central Bank and Trust Company, and to substitute therefor “our issues.” The fact that the original issue of $300,000 certificates of deposit, the subject of the first count, was returned without immediate loss to the bank, and certificates of like denominations and amounts were later issued and dated back to correspond with the first, does not perforce affect the quality of the act in its inception, nor does it ex-cúlpate tbe defendants from all intentional wrong. Tbat tbe credit of tbe bank was unlawfully used, and to its burt, and tbat tbe defendants conspired so to use it, is a permissible inference from all tbe evidence on tbe record.

Just bere, however, the defendants, Luke Lea and Luke Lea, Jr., stressfully contend that whatever inculpatory inferences may be permissible from the State’s evidence as against them, the same evidence, with equal clearness, excludes any suggestion of participation or activity on their part within the State of North Carolina. All that they did was done in the State of Tennessee. Hence, upon this showing, they contend that the jurisdiction of the court was ousted and the case should have been dismissed as to them. S. v. Buchanan, supra.

A criminal conspiracy may be formed in one jurisdiction and executed in another, in which event, under the common-law procedure, prosecution may be bad in either jurisdiction. U. S. v. Wells, supra; 5 R. C. L., 1076. Wherever the conspirators enter into tbe illegal agreement, there the offense is perpetrated, and they may be immediately prosecuted. Thompson v. State, 106 Ala., 67. But if, after forming tbe illegal confederation, they go into another jurisdiction to execute their plans and there commit an overt act, they may be prosecuted in tbe latter jurisdiction without any evidence of an express renewal of their agreement, for tbe law considers wherever they act, there they renew, or perhaps, to speak more properly, there they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design. Qui facit per alium facit per se. People v. Mather, supra. In this connection, it was remarked in Price v. Henkel, 216 U. S., 493, tbat one might be a party to tbe formation of a conspiracy within a jurisdiction without being himself physically present therein.

It is well settled that a prosecution for criminal conspiracy may be had in any jurisdiction where an overt act is committed by any one of the conspirators in furtherance of the common design, though the other conspirators may never have been present therein. Hyde v. U. S., 225 U. S., 347, Ann. Cas., 1914A, 614, and note; S. v. Turner, supra.

In the instant case, the evidence tends to show that overt acts in furtherance of the alleged conspiracy were committed by Davis and Bradford, two of the alleged conspirators, in Buncombe County, this State, thus giving to the Superior Court of that county jurisdiction of the alleged offenses.

That the cashier’s checks, the subject of the fifth count, were issued when the bank was insolvent and without presently receiving therefor anything of value, is not seriously questioned. But it is contended no ultimate barm came to the bank and therefore this count should be dismissed. Men of reasonable minds might easily draw different conclusions from the evidence, hence the fact in issue was one for the jury.

The modus operandi, or method pursued by the defendants in carrying on their many business transactions, is more or less clouded in mystery. One of their own counsel, in criticising the State’s evidence, said it was “clear as mud.” But the State’s case is only a picture of what was found in the bank after the crash. The State did not make the picture. If the indicia of wrongdoing be unjust to the defendants, which could easily have been explained, it is unfortunate that this was not done. The defendants had the right to remain silent, but this also involved the risk of an adverse verdict, where the evidence is sufficient to go to the jury. S. v. Tucker, 190 N. C., 708, 130 S. E., 720. The evidence was amply sufficient to go to the jury on the first and fifth counts as to all of the defendants.

With respect to the seventh count, it is unnecessary to consider the exceptions directed thereto seriatim, for, as to each of the defendants, the sentence on this count is made to run concurrently with the sentences imposed on the first and fifth counts, and in no instance does the sentence imposed on the seventh count exceed the sentences on the first and fifth counts. So, even if error were committed with respect to the seventh count, which has not been made to appear, it could avail the defendants nothing, for this would not affect the validity of the trial on the other counts. S. v. Beal, supra.

On this seventh count the State was not required to prove all of the misapplications alleged. Proof of any one, which clearly appears from the evidence above set out, suffices to support a conviction. People v. Cory, 148 Pac. (Cal.), 532.

Touching the exceptions to the remarks of counsel, it is sufficient to say that those entered after verdict were not seasonably taken. S. v. Tyson, 133 N. C., 692, 45 S. E., 838. And we have been unable to determine, with the aid of appellants’ brief or otherwise, which exceptions were taken in apt time. Nevertheless, they have all been examined and none discovered of sufficient merit to warrant extended consideration in a written opinion.

Practically the entire charge of the court has been made the subject of exception, but a careful perusal of it leaves us with the impression that the defendants have no just cause to complain either at its content or form. A detailed consideration of the exceptions would only call for a repetition of familiar principles. Many of the assignments are directed to instructions on the second, third and sixth counts, upon which no verdict was had or allowed to stand against the defendants. They are, therefore, necessarily excluded from consideration on appeal. Plemmons v. Murphy, 176 N. C., 671, 97 S. E., 648; Cobb v. R. R., 175 N. C., 130, 95 S. E., 92; Warehouse Co. v. Chemical Co., 176 N. C., 509, 97 S. E., 472. Others are taken to the statement of contentions, but as the judge was not given an opportunity to correct them, if erroneous, by having them called to his attention at the time, they are likewise ineffectual on appeal. Mfg. Co. v. Building Co., 177 N. C., 103, 97 S. E., 718; S. v. Little, 174 N. C., 800, 94 S. E., 1; S. v. Foster, 172 N. C., 960, 90 S. E., 785; S. v. Sloan, 199 N. C., 598.

Taken as a whole, the charge is in substantial accord with the decisions on the subjects presented by the exceptions.

The instant record falls short of complying with the rules established for the preparation of cases on appeal. It is unnecessarily voluminous, 1,221 pages, and contains much that might have been omitted. Sigman v. R. R., 135 N. C., 181, 47 S. E., 420. Clarity and succinctness are not its virtues. The defendants were convicted on three counts arid acquitted on four, yet many of the exceptions are directed to the counts on which no conviction was had. A reformation of the record might well have been ordered. We are invited to consider 300 exceptions and assignments of error. In Pretzfelder v. Ins. Co., 123 N. C., 164, 31 S. E., 470, Clark, J., said: “Certainly it can never be necessary to attempt to convince an appellate court that 64 fatal errors, each justifying a new trial (and none other should be presented here), have been committed below.” And in Tilghman v. R. R., 171 N. C., 652, 89 S. E., 71, Allen, J., remarked: “It is not to be expected that we should discuss all of the assignments of error, ninety-four in number, and it is not conceivable that a judge commissioned to hold the courts of the State should have committed so many errors in the trial of an action to recover damages for negligence.” If 94 exceptions be regarded as too many in a negligence case and 64 as excessive in an action to recover on a contract of insurance, what shall be said of 300 in a prosecution for conspiracy and misapplication? Obviously they cannot be treated separately in an opinion without extending it to a “burdensome and intolerable length.” Willis v. New Bern, 191 N. C., 507.

It is quite natural that in the progress of a long nisi prius trial, many exceptions should be taken out of the abundance of precaution, but when counsel come to prepare the statement of case on appeal, conciseness is a requirement of the statute, C. S., 643, and both record and briefs should be narrowed to matters of substance and moment. All exceptions found to be trivial or untenable should be sifted out and abandoned, to the end that the questions seriously debated may be clearly presented and the attention of the Court focused on them. Baker v. Clayton, 202 N. C., 741. “Never run rabbits while chasing the fox,” is a rule of the sportsman equally worthy of observance in the trial of causes as on the bunt. Tbe original brief of tbe defendant contains 284 pages, and in addition, a supplemental brief of 35 pages bas been filed in tbe cause.

As tbe privilege was extended to counsel from another state to argue tbe case, and mitigating circumstances bave been made to appear on bebalf of resident counsel, we are disposed to look upon these matters with an indulgent eye, but in so doing, tbe labors of tbe Court bave been increased manifold.

No error.