State v. Andrews

184 S.E.2d 69 (1971) 12 N.C. App. 421

STATE of North Carolina
v.
Merrill Lane ANDREWS et al.

No. 7110SC542.

Court of Appeals of North Carolina.

October 20, 1971. Appeal Dismissed December 7, 1971. Certiorari Denied December 7, 1971.

Atty. Gen. Robert Morgan and Staff Atty. Ernest L. Evans, Raleigh, for the State.

Tharrington & Smith by Wade M. Smith, Raleigh, for defendant appellant Andrews.

McDaniel & Fogel by L. Bruce McDaniel, Raleigh, for defendant appellant Orr.

Carlos W. Murray, Jr., Raleigh, for defendant appellant Edwards.

Appeal Dismissed by Supreme Court December 7, 1971.

Certiorari Denied by Supreme Court December 7, 1971.

MALLARD, Chief Judge.

In a most commendable manner, counsel for the defendants perfected a joint appeal, filed a joint brief in which they consolidated their assignments of error, and agreed upon the order in which they would be heard upon oral argument.

The defendant Andrews has ten assignments of error, Orr has eight, and Edwards has nine. All of these assignments of error have been consolidated in the brief filed herein under ten headings. The first seven are common to all three of the defendants, the eighth relates only to Andrews and Orr, the ninth relates only to Andrews, and the tenth relates only to Edwards. We will discuss them each separately.

The first question presented is whether the trial court committed error in denying the motion of each defendant to quash the bills of indictment. In each bill of indictment charging a conspiracy, it is alleged that the named defendant "and others" engaged in the conspiracy, and that defendants contend that their motions should have been allowed because none of the three bills of indictment contained the names of any of the conspirators except the particular defendant charged therein. (The defendants do not argue that the bill of indictment charging Edwards with the felony of breaking and entering was inadequate.) The defendants cite the recent case of State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505 (1968), in which a bill of indictment, charging that a named defendant "and others" committed the crime of conspiracy, was held sufficient, but in which it is further stated that the better practice is to name the known conspirators in the bill of indictment. Defendants contend that the solicitors have now had ample time to absorb the "learning" in the 1968 Gallimore decision and should prepare proper bills of indictment by naming the known conspirators when charging a conspiracy. It is not contended, however, that the failure to name the other conspirators hampered the preparation of the defense, but it is argued that this court should hold that "such pleading is too weak to support a conviction for conspiracy." The Supreme Court in State v. Gallimore, supra, held a similar bill of indictment was sufficient; therefore, we repeat the holding that although the better practice would be to name the conspirators in the bill of indictment, if their identity is known, the bills of indictment in these cases, referring to the co-conspirators as "and others," is sufficient. See also State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969).

The defendants contend that the trial judge committed error in denying the motion of each defendant for a mistrial. They argue that their motions should have been allowed because one of the prospective jurors stated during the selection of the jury that he had formed an opinion that the defendants were guilty. The trial judge excused this prospective juror for cause, and the selection of the jury continued after the defendants had approached the bench and made their motions for a mistrial out of the hearing of the jury. The defendants do not offer any authority in support of their position, and this contention is without merit.

The defendants' third contention is that the court committed error in permitting Moody to testify to the conspiracy. A co-conspirator is an accomplice and therefore is a competent witness. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964). See also 16 Am.Jur.2d, Conspiracy, § 41. Defendants also argue that in order to be competent, the testimony of a co-conspirator must be corroborated to a significant degree. These contentions are without merit. The North Carolina Supreme Court held in the case of State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969), cert. denied, 398 U.S. 959, 90 S. Ct. 2175, 26 L. Ed. 2d 545, rehearing denied, 400 U.S. 857, 91 S. Ct. 25, 27 L. Ed. 2d 97, that "(t)he unsupported testimony of a co-conspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution." In this case, however, there was some evidence, both circumstantial and direct, to support Moody's testimony.

Defendants' fourth contention is that the trial judge erred in failing to allow their motions for judgment as of nonsuit. In State v. Gallimore, supra, the Court said:

"* * * ``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 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. Abernethy, 220 N.C. 226, 17 S.E.2d 25. The crime is complete when the agreement is made.

* * * * * *

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. * * *"

When the evidence in this case is viewed in the light of the applicable rules of law set out in Gallimore, we hold that there was ample evidence against each defendant to require submission of this case to the jury.

The defendants, without taking the witness stand, made motions that they be permitted to go upon the witness stand and testify in their own behalf but that the solicitor for the State be denied the right to cross-examine them as to their criminal records. They assert the denial of these motions as error. In State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971), the Supreme Court said: "The court was not required, in advance of the defendant's taking the stand, to rule upon the limits of permissible cross-examination." In the case before us, none of the defendants took the stand; hence the question as to the limitation of the cross-examination by the solicitor is not presented. Even had it been properly submitted, however, this contention would be of no avail to the defendants because in the case of State v. Brown, 266 N.C. 55, 145 S.E.2d 297 (1965), the Supreme Court answered this question against this contention when it said:

"When a defendant takes the stand as a witness in his own behalf, he ``may be cross-examined with respect to previous convictions of crime, but his answers are conclusive, and the record of his convictions cannot be introduced to contradict him.' Stansbury's North Carolina Evidence, 2nd Ed., § 112; State v. Cureton, 215 N.C. 778, 3 S.E.2d 343; State v. Howie, 213 N.C. 782, 197 S.E. 611; State v. Maslin, 195 N.C. 537, 143 S.E. 3."

Defendants also contend that it was error for the trial judge to condition the last argument to the jury upon the presentation of no evidence by the defendants. This question is not properly presented either, because the defendants here did not testify and were granted the last argument to the jury. The trial judge was not required to rule upon the sequence of the argument prior to the closing of the evidence. The time and sequence of argument of a case to the jury, however, is controlled by the trial judge under the authority of Rule 10 of the General Rules of Practice for the Superior and District Courts as adopted by the Supreme Court of North Carolina pursuant to G.S. § 7A-34.

The court did not commit error when it refused to grant defendants' motions in arrest of judgment on the grounds that the bills of indictment did not properly allege a conspiracy. Three of the bills of indictment did properly allege a conspiracy, and the other indictment against Edwards properly charged him with the felony of breaking and entering with intent to steal.

The defendants assert in their eighth contention that the trial judge erred in overruling objections by the defendants Andrews and Orr to testimony by State's witness Branch as to a statement made by the co-defendant Edwards. While the State's witness Branch was testifying, the following occurred:

"Q. Tell us what conversation you had with him on the way back?

MR. SMITH: Objection as to Andrews.

MR. McDANIEL: Objection as to Orr.

COURT: Objections overruled.

DEFENDANT ANDREWS' EXCEPTION NO. 35

DEFENDANT ORR'S EXCEPTION NO. 36

COURT: All right, I instruct the jury it is to be considered only against the defendant Edwards and not against any of the other defendants in these cases."

While this witness was testifying, defendants Andrews and Orr moved to strike all of his testimony, and the judge said:

"Motion denied; and I instruct the jury that this is not to be considered against either the defendant Andrews, or the defendant Orr; to disregard it completely as to them, if it does in any way involve or implicate them."

Again while this witness was testifying, Andrews moved to strike a portion of his testimony, and the judge said:

"Motion to strike is denied. But I instruct the jury not to consider it against Andrews."

Immediately after this instruction, defendant Orr's counsel said: "Same as to defendant Orr"; whereupon, the court said, "Same instruction applies to the defendant Orr."

In each instance the trial judge overruled the objection of the defendants and denied their motions to strike, but on each occasion the jury was immediately instructed that the testimony of the witness Branch as to what Edwards told him was not to be considered by them against the other defendants. What defendant Edwards told the officers after the abortive attempt to open the safe was not competent evidence against the other two defendants but was competent against him. State v. Conrad, supra.

It was technically incorrect for the trial judge to fail to sustain these objections of Andrews and Orr and to fail to allow their motions to strike—but the trial judge, immediately after making his rulings, told the jury three times not to consider such testimony against Andrews or Orr. Moreover, the testimony of the witness Branch did not directly implicate or refer to Andrews or Orr. We do not think that the error was prejudicial; therefore, the assignments of error upon which this contention is based are overruled.

In the ninth contention set out in the brief, the defendant Andrews asserts that it was error for the judge to fail to quash the bill of indictment on the grounds that the State did not afford him a speedy trial. The bill of indictment was returned against the defendant Andrews in February 1970. He was brought to trial in March 1971. In denying the motion of the defendant Andrews, the court said:

"* * * (L)et the record show that some of the co-defendants were out of the State and not subject to the jurisdiction of this State; and for other reasons, other co-defendants were not available for trial; that the defendant has offered no evidence to show that he was prejudiced by the delay; and it further appears that the defendant has been released on bond and has not suffered undue and oppressive incarceration; that he has not heretofore requested a trial of the charges against him; and the defendant has not shown that the delay was due to neglect or wilfulness. Your motion is, therefore, DENIED * * *."

In the case of State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969), it is said:

"The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. A defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice. * * *"

In State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971), the Supreme Court said:

"* * * The circumstances of each particular case determines whether a speedy trial has been afforded. Undue delay cannot be defined in terms of days, months, or even years. The length of the delay, the cause of the delay, prejudice to the defendant, and waiver by the defendant are interrelated factors to be considered in determining whether a trial has been unduly delayed. The burden is on the accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. * * *"

There is nothing in the record before us to indicate that the delay in bringing Andrews to trial was due to the neglect or wilfulness of the prosecution. Neither does the record show that the defendant demanded a trial or was prejudiced by the delay. In this case, when all of the circumstances and interrelated factors are considered, we hold that the trial judge did not commit error in refusing to quash the bill of indictment against Andrews. See also State v. Neas, 278 N.C. 506, 180 S.E.2d 12 (1971) and State v. Wrenn, 12 N.C.App. 146, 182 S.E.2d 600 (1971).

The tenth and last contention made by the defendants is that the trial judge committed error when he ordered Edwards incarcerated during the course of the trial. The record reveals that after the accomplice Moody testified, the State moved, out of the hearing of the jury, that all of the defendants be placed in custody. Only Edwards argues that this was error. One of the defendants was apparently already in custody. In 8 Am.Jur.2d, Bail and Recognizance, § 25, it is said:

"It is the general rule in the states that the trial court has the right, in its discretion, to order a defendant who has been at large on bail into custody during the trial, or during recess, even though the offense of which the defendant is charged is bailable."

The record does not reveal that the defendant Edwards was placed in custody during the trial as a punishment. In fact, he did not receive the maximum punishment for the crimes of which he was convicted. The inference arises that the reason the defendant Edwards was placed in jail was for the proper purpose of ensuring the orderly and expeditious progress of the trial. No abuse of discretion is shown and no prejudicial error appears in the record. We hold that the trial judge did not commit prejudicial error in putting the defendant Edwards in custody after the accomplice Moody had testified.

No error.

CAMPBELL and HEDRICK, JJ., concur.