Judges： Consideration, Devin, Stacy, Took
Filed Date： 11/20/1935
Status： Precedential
Modified Date： 11/11/2024
after stating the case: When the case was called for trial, the defendant Jerry Furlough tendered a plea of nolo contendere ■on the charge of conspiracy, which was accepted by the State. He was later used as a witness for the prosecution.
The judgment against the defendant, Avery Kimrey, was suspended ■upon terms acceptable to him and his counsel, and apparently he has not .appealed. S. v. Rooks, 207 N. C., 275, 176 S. E., 752. Hence, the validity of the terms of suspension as to him, or whether they are accordant with what was said in S. v. McAfee, 189 N. C., 320, 127 N. C., 204, is mot presently before us for decision. S. v. Rhodes, ante, 241.
Was there error, or has any been shown, in any decision of the court below on any matter of law or legal inference? This — and this alone— is the inquiry presented by the appeal.
At the outset of the case, the defendants demurred to the indictment, or moved to quash, and asked for a severance. The bill charges a conspiracy on the part of all the defendants and the successive steps thereafter taken by the respective conspirators, or some of them, in the execution of their original design. These steps were six in number, all of the grade of felony, and it is permissible under our practice to join them as separate counts in a single bill. C. S., 4622; S. v. Jarrett, 189 N. C., 516, 127 S. E., 590.
Speaking directly to the point in S. v. Malpass, 189 N. C., 349, 127 S. E., 248, Parser, J., delivering the opinion of the Court, said: “The rule in this State now is, that different counts relating to the same transaction, or to a series of transactions, tending to one result, may be joined, although the offenses are not of the same grade,” citing as authority for the position: S. v. Lewis, 185 N. C., 640, 116 S. E., 259; S. v. Burnett, 142 N. C., 577, 55 S. E., 72; S. v. Howard, 129 N. C., 584, 40 S. E., 71; S. v. Harris, 106 N. C., 682, 11 S. E., 377; S. v. Mills, 181 N. C., 530, 106 S. E., 677. See, also, S. v. Alridge, 206 N. C., 850, 175 S. E., 191.
Furthermore, bills and warrants are no longer subject to quashal “by reason of any informality or refinement,” C. S., 4623, and judgments are not to be stayed or reversed for nonessential or minor defects. O. S., 4625; S. v. Whitley, ante, 661. The modern tendency is against technical objections which do not afféct the merits of the ease. S. v. Hardee, 192 N. C., 533, 135 S. E., 345.
A similar situation to the one now presented arose in the case of S. v. Beal, 199 N. C., 278, 154 S. E., 604. There, it was held that a demurrer to the bill on the ground of duplicity was properly overruled. S. v. Knotts, 168 N. C., 173, 83 S. E., 972. A like result must follow here. S. v. Lea, 203 N. C., 13, 164 S. E., 737; S. v. Charles, 195 N. C., 868, 142 S. E., 486.
The motions made in connection with the jury do not amount to a challenge to the array. S. v. Levy, 187 N. C., 581, 122 S. E., 386; Lupton v. Spencer, 173 N. C., 126, 91 S. E., 718. Indeed, the instruction of the court to a deputy sheriff to summon a number of men to .serve as talesmen was not an order under the statute, C. S., 2321, for talesmen or a special venire. S. v. McDowell, 123 N. C., 764, 31 S. E., 839. The practice is quite common on the circuit. The jurors were subjected to all the qualifications of talesmen, and the defendants did not exhaust their challenges to the polls. S. v. Levy, supra. No just or valid complaint can be predicated upon these exceptions.
The most serious exception appearing on the record is the one addressed to the refusal of the court to strike out the alleged confession of the defendant Howard Overman. It is true, when the alleged confession was offered in evidence, its voluntariness was not questioned or determined in the manner pointed out in S. v. Whitener, 191 N. C., 659, 132 S. E., 603. The court was justified in admitting it at the time. And •even when the testimony of D. P. Stewart later developed, there was no motion to withdraw the alleged confession from the consideration of the jury — at least none appears of record. The exception now insisted upon was taken at the close of all the evidence. The ruling might possibly be upheld upon procedural grounds, but inasmuch as the involuntariness of the alleged confession is apparent from the testimony of the State’s witness, D. P. Stewart, we are disposed to disregard form for merit and to hold that the alleged confession should have been stricken out. S. v. Livingston, 202 N. C., 809, 164 S. E., 337; S. v. Grier, 203 N. C., 586, 166 S. E., 595; S. v. Davis, 125 N. C., 612, 34 S. E., 198; S. v. Drake, 113 N. C., 624, 18 S. E., 166; S. v. Dildy, 72 N. C., 325; S. v. Whitfield, 70 N. C., 356.
A free and voluntary confession is deserving of the highest credit, ■because it is presumed to flow from the strongest sense of guilt, but a
Speaking to the subject in S. v. Roberts, 12 N. C., 259, Henderson, J., said: “Confessions are either voluntary or involuntary. They are called voluntary when made neither under the influence of hope nor fear, but are attributable to that love of truth which predominates in the breast of every man, not operated upon by other motives more powerful with him, and which, it is said, in the perfectly good man cannot be countervailed. These confessions are the highest evidences of truth, even in cases affecting life. But it is said, and said with truth, that confessions induced by hope or extorted by fear are, of all kinds of evidence, the least to be relied on, and are therefore entirely to be rejected.”
Voluntary confessions are admissible in evidence against the party making them; involuntary confessions are not. A confession is voluntary in law when' — and only when — it was in fact voluntarily made. S. v. Newsome, 195 N. C., 552, 143 S. E., 187.
The sustaining of this exception, however, does not affect the other defendants, because in the alleged confession no reference is made to any conspiracy, and it was admitted only as against the defendant Howard Overman.
The overruling of the motions to nonsuit under the Mason Act, and exceptions thereto, present for review the sufficiency of the evidence, taken in its most favorable light for the prosecution, to carry the case to the jury. S. v. Marion, 200 N. C., 715, 158 S. E., 406. Whether there is such evidence is a question of law for the court to determine. The credibility, weight, and effect of the testimony are for the jury. S. v. Harrell, 203 N. C., 210, 165 S. E., 551.
The practice is now so firmly established as to admit of no questioning that, on a motion to nonsuit, the evidence is to be considered in its most favorable light for the prosecution. S. v. Rountree, 181 N. C., 535, 106 S. E., 669. And further, the general rule is that if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. S. v. Vinson, 63 N. C., 335. But if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. S. v. McLeod, 198 N. C., 649, 152 S. E., 895; S. v. Blackwelder, 182 N. C., 899, 109 S. E., 644.
Tested by this rule, what are the inculpatory inferences reasonably dedueible from the evidence appearing on the present record ?
1. That Eed Gross dynamite was thrown into the plants of Stevens Manufacturing Company and E. M. Holt Plaid Mills, Inc., of Burlington, N. C., on the night of 14 September, 1934.
2. That Florence Blaylock threw the dynamite into these plants from an automobile driven by Howard Overman.
3. That on the previous night, the dynamite magazine or storehouse of the Kirk Holt Hardware Company was broken into, by means of sawing the staple, and two or three boxes of Eed Cross dynamite taken therefrom.
4. That the tracks of five persons were discovered around and about this storehouse on the following morning.
5. That the defendants J. P. Hoggard, J. F. Haraway, and Tom Oanipe were in the Chevrolet automobile found in front of this storehouse about 9 :30 p.m. on the night of the entry.
6. That another automobile was there, also; that Florence Blaylock had in his possession a hacksaw, which he borrowed from Jerry Furlough, and that the dynamite storehouse was opened with a hacksaw.
7. That the record discloses a plain case of store-breaking, larceny, and malicious mischief, with the question of identity as the principal issue on the last five counts in the bill.
8. That the defendant John L. Anderson hid some Eed Cross dynamite on the farm of his mother-in-law, later removing it to a secluded spot near Burlington; that he talked with the defendants Florence Blay-lock, Jerry Furlough, and Avery Kimrey as to how the Duke Power plant was to be blown up, and that he wanted some of this dynamite put under the house of Mr. Copeland, one of the owners of the Plaid Mills, so as to make it appear an inside job.
9. That the defendants John L. Anderson, J. P. Hoggard, Florence Blaylock, Avery Kimrey, and Jerry Furlough acted in concert in directing the actions of the defendants, both with respect to arranging for the dynamite and manufacturing evidence for their defense, for example, the understanding that Mr. King would set his watch ahead, so as to be able to establish an alibi, etc.
It appears, therefore, that the evidence was amply sufficient to carry the case to the jury on the first count as against all the defendants, except, perhaps, J. F. Haraway, Tom Oanipe, and Howard Overman. As to Haraway and Oanipe, however, the evidence is sufficient to convict them on the 2d, 3d, and 4th counts; and Overman is to be held for another trial on the 4th, 5th, and 6th counts.
The principle upon which this conclusion rests is that, without regard to any previous design or confederation, when two or more persons aid and abet each other in the commission of a crime, all being present, all
And further, it is the rule of practice in this jurisdiction that where the indictment contains several counts, and the evidence applies to one or more, hut not to all, a general verdict will be presumed to have been returned on the count or counts to which the evidence relates. S. v. Snipes, 185 N. C., 743, 117 S. E., 500; Morehead v. Brown, 51 N. C., 369; S. v. Long, 52 N. C., 26; S. v. Leak, 80 N. C., 404; S. v. Thompson, 95 N. C., 597; S. v Stroud, ib., 627; S. v. Cross, 106 N. C., 650, 10 S. E., 857; S. v. Toole, ib., 736, 11 S. E., 168; S. v. Gilchrist, 113 N. C., 673, 18 S. E., 319; S. v. May, 132 N. C., 1020, 43 S. E., 819; S. v. Gregory, 153 N. C., 646, 69 S. E., 674; S. v. Poythress, 174 N. C., 809, 93 S. E., 919; S. v. Strange, 183 N. C., 775, 111 S. E., 350.
The evidence as it relates to the charge of conspiracy tends to show that the Duke Power plant, or transformer station, was to be dynamited as well as the mills. Fortunately, this part of the plan was not carried out. The result, however, is the same so far as the motions to nonsuit are concerned. C. S., 4643.
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. Lea, 203 N. C., 13, 164 S. E., 737; 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. Cas., 156.
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. S. v. Ritter, 197 N. C., 113, 147 S. E., 733. “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
Direct proof of the charge is not essential, for such is rarely obtainable. It may be, and generally is, 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. C. 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 he difficult to believe they had not previorzsly been together. At least, it would be some evidence tending to support the inference. S. v. Whiteside, 204 N. C., 710, 169 S. E., 711.
So, in the instant case, the facts in evidence afford more than a scintilla of proof that the defendants were not acting in concord by accident. S. v. Shipman, 202 N. C., 518, 163 S. E., 657. The demurrers to the evidence were properly overruled.
The evidence upon which the defendants have been convicted comes in the main from their own alleged coconspirators and associates. If this be untrustworthy, as they now contend, it should be remembered the defendants were the first to repose confidence in these witnesses, and their appeal was to the jury. In this respect, we are unable to help them. Our jurisdiction is limited to reviewing on appeal decisions upon any matter of law or legal inference. Const., Art. IY, sec. 8.
A large number of exceptions were taken to the admission and exclusion of evidence, all of which have been examined with care. None can be sustained. 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, 132 S. E., 286. In several instances the record fails to disclose what the excluded testimony would have been. This renders such exceptions unavailing. S. v. Rowland, 205 N. C., 544, 172 S. E., 182; S. v. Brewer, 202 N. C., 187, 162 S. E., 363; 81 A. L. R., 1424; S. v. McNair, 93 N. C., 628.
Stress has been laid upon the following instruction given at the jury’s request:
“You may convict one or more and acquit the others, on any count. You may convict them all, or you may acquit them all, on any of the counts.”
The principal criticism of this instruction is that it permits a conviction of only one of the defendants on the charge of conspiracy. The defendants have apparently overlooked the fact that Jerry Furlough was named in the indictment as one of the alleged conspirators, “and others by name to the jurors unknown.” This would render inapplicable the principle announced in S. v. Mickey, 207 N. C., 608, 178 S. E., 220; S. v. Diggs, 181 N. C., 550, 106 S. E., 834; and S. v. Tom, 13 N. C., 569. Furthermore, the point is academic, as the jury returned a general verdict against all the defendants on trial. It is also observed that during the charge, the court stated: “I shall hand you, gentlemen, before I conclude, a list containing the several counts in the bill of indictment and the names of the defendants who are included in the several counts. This will be to guide you and help you and to assist you — not in any way to control you in any manner, but simply to help you to arrive at.your verdict.”
It is not perceived in what way the instruction, assigned as error, was hurtful to the defendants.
Nor was there error in the court’s instruction to the jury that the testimony of the defendants and their near relatives who went upon the stand and testified in their behalf should be scrutinized with care in order to ascertain to what extent, if any, their testimony was warped or biased by their interest, adding, however, that if, after such «scrutiny, they believed such witnesses, they would give the same credit to their testimony as if they were disinterested. S. v. Lee, 121 N. C., 544, 28 S. E., 552; S. v. Deal, 207 N. C., 448, 177 S. E., 332.
Again, the defendants complain because the trial court did not caution the jury, or instruct them, as to how the testimony of detectives and accomplices should be received and considered. S. v. Palmer, 178 N. C., 822, 101 S. E., 506. There was no request for such instruction, and the assignment is without exceptive basis. A similar contention was advanced and rejected in S. v. O'Neal, 187 N. C., 22, 120 S. E., 817. A like result must follow here.
A remark made by the court during the trial, rhetorically appreciative ■of the jury, was also the subject of comment on the argument, but as no
Finally, tbe defendants stressfully contended tbey were discredited in their defense by tbe following instruction :
“Now, you are not concerned, gentlemen, witb tbe opinions of tbe attorneys. It doesn’t make any difference to you wbat tbe attorneys in tbe ease tbink about it — whether tbey think tbe defendants innocent or guilty. Tou are only concerned witb tbe evidence in tbe case — which you will not take from tbe attorneys nor from tbe court. It is your duty to remember tbe evidence and to be governed exclusively by tbe evidence.”
Tbe basis of tbe objection to this charge is, that it lessened tbe force of tbe argument of counsel made in behalf of tbe defendants in tbe exercise of tbeir constitutional and statutory rights. S. v. Hardy, 189 N. C., 799, 128 S. E., 152. If this were so, there would be substance to tbe objection. It is observed, however, that it was not tbe argument of counsel, but tbeir opinions as to tbe guilt or innocence of the accused, which tbe jury was told to disregard. In this there was no error. Characterization is not argument. Nor is it regarded as proper for counsel to express tbeir opinions upon tbe question which tbe jury is impaneled to decide. Stanley v. Lbr. Co., 184 N. C., 302, 114 S. E., 385. For example, in concluding tbe argument of tbe instant case on appeal, counsel for some of tbe defendants!, Mr. Levinson, said that in bis opinion tbe defendants bad not bad a fair trial, and that tbe charges against them should be dismissed. This was venturing an opinion beyond tbe province of counsel. Evidently a similar impropriety occurred in tbe court below, and it was this which tbe jury was instructed not to consider.
Again recurring to tbe case of Avery Kimrey, it appears that be did not join in tbe motion to set aside tbe verdict; and no bond was required of him. He and bis counsel consented to tbe terms upon which tbe judgment as to him was suspended. Tet in tbe entries of appeal it appears “tbe defendants, and each of them, except and appeal to tbe Supreme Court.” If this were intended to include tbe defendant Kim-rey, tbe appeal as to him must be dismissed, as be sought and accepted tbe indulgence and forbearance of tbe court. S. v. Henderson, 207 N. C., 258, 176 S. E., 758; S. v. Burnette, 173 N. C., 734, 91 S. E., 364; S. v. Tripp, 168 N. C., 150, 83 S. E., 630; S. v. Griffis, 117 N. C., 709, 23 S. E., 164; S. v. Johnson, 169 N. C., 311, 84 S. E., 767; S. v. Ed
We were told on the argument that as a matter of economic justice the charges against the defendants should be dismissed. It is observed, however, that the prosecution involves no rights arising out of the relationship of employer and employee. Indeed, whether such relationship exists is not pertinent to the inquiry. The record reveals a plain case of violence and wilful injury to property as a result of an unlawful conspiracy. No one, we take it, is willing to condone this conduct. The law condemns it, and it is to the interest of all that the offenders be apprehended. The cause of justice is never served by beclouding the issue. A jury of the vicinage has found, upon competent evidence, that the present defendants are the guilty parties. With the exception of Howard Overman, they have no legal grounds to complain.
The result, therefore, is as follows:
On appeal of defendants Anderson, Hoggard, Oanipe, Haraway, and Blaylock, no error.
On appeal of defendant Overman, new trial.
On appeal of defendant Kimrey, appeal dismissed.