State v. Smith, 221 N.C. 400 (1942)

June 5, 1942 · Supreme Court of North Carolina
221 N.C. 400


(Filed 5 June, 1942.)

1. Conspiracy § 3—

If a number of parties conspire or agree to engage in an unlawful enterprise, each is liable for acts committed by any of them in furtherance of the common design and the manner or means used in executing the common purpose and also such acts as are the natural and probable consequence of the unlawful enterprise even though these latter were not intended or contemplated as a part of the original undertaking.

2. Conspiracy § 6—

Evidence tending to show that defendants agreed and conspired forcibly to stop a truck on the highwaj1', and that pursuant thereto defendants stopped the truck by shooting one of its tires, held up the driver and burned the truck, is held to support conviction of conspiracy feloniously to burn the truck, since each of the conspirators is liable for the method used to accomplish the common purpose and acts committed by any of them which are a natural and probable consequence of the unlawful enterprise even though such acts were not contemplated as a part of the original undertaking.

3. Same — Evidence of conspiracy feloniously to burn certain property held sufficient.

Where the State introduces in evidence a confession made by one of defendants that he conspired with the other defendants to forcibly stop a truck on the highway, and introduces other evidence tending to connect the other defendants with the agreement, and circumstantial evidence supporting the inference of a conspiracy to stop and burn the truck and that pursuant thereto defendants did actually stop the truck and burn it, and the court charges the jury to the effect that in order to sustain a conviction of defendants the jury must find beyond a reasonable doubt that defendants conspired to burn the truck, held, defendants’ contention that there is a fatal variance between the indictment and proof or a total failure of proof in that the indictment charged a conspiracy to burn the truck while the evidence discloses that the agreement was to stop the truck, but not burn it, is untenable.

4. Trial § 31—

The use of the words “you want to find” in charging the jury as to the elements of the offense charged held, construing the charge as a whole, merely to place the burden on the State to prove the crime charged and not to constitute an expression of opinion or a direction or intimation that the jury should so find. O. S., 564.

5. Conspiracy § 6—

Confessions of guilt of the conspiracy charged were admitted against all defendants except one. Held: The circumstantial evidence of this defendant’s guilt of conspiracy, outside the confessions, held to support his conviction.

*4016. Trial § 32a—

A demurrer to the evidence presents only the question of the sufficiency of the evidence to carry the case to the jury, the weight and credibility of the evidence being for the jury and not the court. C. S., 4643.

7. Conspiracy §§ 3, 5—

When a person enters into an unlawful conspiracy he is a party to every act which may be done by the other conspirators in furtherance of the common design, and the acts and declarations of each conspirator done or uttered in furtherance thereof are admissible in evidence against all.

8. Criminal haw § 33—

Where the court, in the absence of the jury, hears evidence as to the competency of a confession and admits same in evidence upon its finding that the confession was freely and voluntarily made, the court’s ruling thereon will not be disturbed on appeal if supported by any competent evidence.

9. Criminal Haw § 53g — Misstatement of the contentions of a party must he brought to the court’s attention in apt time.

The State’s evidence tended to show that defendants conspired to burn a truck on a highway and that pursuant thereto defendants stopped the truck by shooting a tire and then burned the truck. The court in stating the contentions of one defendant stated that he admitted that his possession of a pistol was “a little suspicious.” The court in other portions of the charge stated that no one testified that the pistol found in this defendant’s home was the pistol the truck driver saw, and the jury’s attention was called to the fact that the pistol was found at defendant’s home and not at the scene of the crime. Held: The statement of the contention cannot be held for reversible error when taken in its setting in view of the failure of defendant to call the inaccuracy to the court’s attention in apt time.

10. Criminal Haw § 53c—

A charge that the burden is on the State to satisfy the jury of the offense charged cannot be held for prejudicial error as misstating the quantum, of proof necessary for a conviction when the court in the immediate preceding portion of the charge has instructed the jury that the burden is on the State to prove the fact of guilt beyond a reasonable doubt.

11. Criminal Haw § 53h, 81c—

A charge must be construed contextually as a whole, and exceptions to • isolated portions of the charge will not be sustained when the charge, so construed, is not prejudicial.

12. Criminal Haw § 81c—

Where defendants have been convicted of three offenses of the same grade and the same sentence is imposed for all three, the sentences to run concurrently, if there is no error in the trial of one of them, exceptions relating to the trial of the others need not be considered. However, in this case the exceptions have been considered seriatim and none are sufficient to disclose prejudicial error.

Appeal by defendants from Rousseau, J., at September Term, 1941, of Guilford.

*402Criminal prosecutions tried upon indictments (1) charging the defendants, W. H. Smith, Avery Gunter, H. B. Lipscomb, J. E. Bull, Otis Kessler and six others, in one bill, with conspiracy feloniously to burn and with burning a certain Mack tractor and trailer, the property of G. and M. Motor Transportation Company of the value of $4,000 and a cargo of merchandise on said trailer at the time, the property of Larasista Corset Company and another, of the value of $8,534.16, (2) charging the above named defendants and five others, in a second bill, with the felonious burning of the tractor, trailer and cargo as described, and (3) charging the above named defendants and four others, in a third bill, with armed felonious robbery, from the drivers, of the tractor, trailer and cargo as described, all against the forms of the statutes in such cases made and provided and against the peace and dignity of the State.

'Without objection, the indictments were consolidated and tried together as they all arose out of the same transaction, or series of transactions, leading to a single end. S. v. Malpass, 189 N. 0., 349, 127 S. E., 248.

At the time in question a strike was in progress among the drivers of the G. and M. Motor Transportation Company of Statesville, N. C. The following are mentioned in the record as officers of the truck drivers’ union: S. M. Keyser, head of the union; J. E. Bull, shop steward; W. H. Smith, dues collector. Under the leadership of these officers, the truck drivers were engaged in picketing the office of the company in Statesville, the purpose being to prevent the company from operating its trucks until the demands of the drivers were met or satisfied. The strike was only partially effective.

On Saturday night, 21 June, 1941, about 10 :00 or 11:00 p.m., two drivers, Howard Brown and Bristol Ayers, left Statesville with a G. and M. tractor and trailer loaded with a cargo of merchandise destined for Providence, E. I. When they reached Mack’s Place, about 4 miles from Winston-Salem, they stopped for a midnight lunch. Here, they saw about a dozen automobiles and observed a number of people, “some dressed like a truck driver would be.” Ayers said to Brown, “Let’s go, two of them are Harris drivers and they might call Charlotte and we might have trouble.” On leaving Mack’s Place, Ayers got in the sleeper and Brown was driving. They were stopped near Stokesdale, approximately one-half mile over the Guilford County line, about 1:15 a.m., held up with pistols by a number of men who were traveling in three automobiles. The tractor, trailer and cargo were taken from them, driven some distance and later set on fire and destroyed.

Howard Brown testified: “One car pulled up to the side of the trailer and shot down my left rear tractor outside tire. I stopped on the shoulder of the road. . . . They told us to get out and sit on the embankment. . . . There was a crowd there, in my opinion approximately ten. ... I *403saw two pistols. ... We were then told to get in one of the cars. . . . I don’t believe anything was said until we got to Stokesdale. ... We turned around and came back and stopped in front of the tractor and trailer. . . . Two of the men got out and shot holes through the two tanks, and one struck a match and threw it in gasoline on the ground. It started blazing up and they came back and jumped in the car and started on up the road. There was some discussion about what was to be done with me and Ayers — where we were to be taken. . . . Someone said they had seen us at Mack’s Place. ... We were finally taken to the city limits of Greensboro. . . . They said to keep quiet; to tell that it was a Plymouth instead of a Ford; and they said the union would take care of us. ... We were told not to tell that we recognized anyone. . . . These boys said for us to keep quiet and the union would take care of us. We agreed to do so.” The witness said he did not tell the whole story at first and disclaimed recognizing anyone, because he “didn’t want the union to find out about me telling it.”

Bristol Ayers testified that he had talked with Smith and Gunter on several occasions during the time they were picketing the G. and M.; that the conversations centered around the strike and joining the union; that he did join the union three weeks before the truck was burned; that he is not a member now.

On 16 July, 1941, J. R. Bull, one of the defendants, signed a confession in writing, in which he stated that at the instance of Keyser, he and others went out “to stop this G. & M. Motor Company truck.” Q. “Was anything said about shooting the tires or burning this truck?” A. “No, just stop it.”

On being asked whether he joined in any conversation at the scene of the holdup, he answered, “No, nothing more than to say they shot the tires.” Q. “Who told you to leave ?” A. “They were at the back of the truck and said go ahead.” Q. “Who told you to go ahead ?” A. “Gunter or Smith said it. I went up the road and picked up the men.” He named Smith, Gunter, Lipscomb, Kessler and others as being in the crowd that night. They left Charlotte in four automobiles and overtook the truck near Stokesdale.

The defendants, Lipscomb and Kessler, said the statement signed by Bull was true and that they wanted to sign it. The statement was admitted as against the defendants, Bull, Lipscomb and Kessler.

The driver of the truck testified that he recognized the defendant Smith at the scene of the holdup.

At about 6 :00 or 6 :30 p.m., 21 June, 1941, S. M. Keyser had four cars serviced at the Truckers’ Terminal in Charlotte. One of them was Avery-Gunter’s car. The defendants, Gunter and Smith, were there at the time. An employee of the Terminal testified: “I put about 50 *404gallons in tbe four ears. . . . He (Keyser) simply said to me to fill up tbe four cars, and be would pay for tbe gas, and after be left not to tell anybody where be bad gone.”

It is in evidence tbat tbe defendant Gunter borrowed a pistol from E. E. Caldwell “sometime during tbe past year,” wbicb bad a rusty spot on tbe side where tbe thumb rests. He bad not returned it at tbe time of tbe trial. It was identified by tbe witness. When Gunter was arrested, tbe pistol was found in bis bouse.

At tbe close of tbe State’s evidence tbe defendants, and each of them, demurred and moved for judgment of nonsuit on each and every count in each and every bill of indictment. Overruled as to each and all of tbe above named defendants. Exceptions. Tbe defendants offered no evidence.

(Tbe actions were dismissed as to tbe defendants, H. J. Elmore, Jr., Kelly Watts, and Ealpb Barton. Order of abatement was entered as to tbe defendant S. M. Keyser, who bad died before tbe case was called for trial. Since tbe trial and pending tbe appeal, tbe defendant, O. K. Wallace, has died.)

Verdict: Guilty as to each defendant on each charge in each bill of indictment.

Judgments as to each defendant: Imprisonment in tbe State’s Prison for a period of not less than 6 nor more than 9 years, (1) on tbe bill charging conspiracy, tbe same as to each defendant, (2) on tbe bill for burning tbe truck, to run concurrently with tbe sentence on tbe bill charging conspiracy, and tbe same as to each defendant, (3) on tbe bill charging armed robbery, to run concurrently with tbe sentence on tbe bill charging conspiracy.

Tbe above named defendants appeal, assigning errors.

Attorney-General McMullan and Assistant Atlorneys-General Bruton and Patton for the State.

Wot. S. Ahernethy and A. A. Tarlton for defendants.

Stacy, O. J.

Tbe record contains 116 assignments of error based on 125 exceptions. Obviously they cannot be treated separately in an opinion without extending it to a “burdensome and intolerable length.” S. v. Lea, 203 N. C., 13, 164 S. E., 737. However, none has been overlooked; all have been duly examined and considered. Tbe principal reasons inducing our conclusions on tbe main exceptions follow:

I. Tbe defendants challenge tbe sufficiency of tbe evidence to warrant a conviction on tbe indictment charging a conspiracy to burn tbe property as described, it appearing from tbe confessions, offered by tbe State, tbat tbe antecedent arrangement among tbe defendants was 'to “go out *405and stop tbe truck,” not to burn it. S. v. Trammell, 24 N. C., 379. Tbis, they say, is binding on the prosecution, S. v. Cohoon, 206 N. C., 388, 174 S. E., 91, and constitutes a fatal variance between the indictment and the proof, or a total failure of proof. S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Gibson, 169 N. C., 318, 85 S. E., 7; 11 Am. Jur., 567.

There are two answers to the position.

In the first place, authority may be found for the holding that where there is a conspiracy to engage in an unlawful enterprise, e.g., the forcible stopping of a truck on the highway, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any of the conspirators in the accomplishment of the purpose in which they are all engaged at the time. S. v. McCahill, 72 Iowa, 111; S. v. Powell, 168 N. C., 134, 83 S. E., 310. If many engage in an unlawful conspiracy, to be executed in a given manner, and some of them execute it in another manner, yet their act, though different in the manner, is the act of all who conspired. S. v. Bell, 205 N. C., 225, 171 S. E., 50; 1 Bishop on Crim. Law (9 Ed.), 465.

And the liability also extends to acts not intended or contemplated as a part of the original design, but which are a natural or probable consequence of the unlawful combination or undertaking. S. v. Williams, 216 N. C., 446, 5 S. E. (2d), 314; S. v. Beal, 199 N. C., p. 294, 154 S. E., 604; 1 Brill’s Cyclopedia Crim. Law, 464. The general rule is, that if a number of persons combine or conspire to commit a crime, or to engage in an unlawful enterprise, each is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts are not intended or contemplated as a part of the original design. S. v. Williams, supra; S. v. Powell, supra; S. v. Lea, supra; S. v. Stewart, 189 N. C., 340, 127 S. E., 260. In the McCahill case, supra, it was held that where a large number of persons combined to drive employees from premises, and in carrying out the conspiracy, one committed a murder, the rest, who did not intend it, were also guilty. And in the Bell case, supra, where six persons were charged with conspiracy to burglarize a house, and a murder was committed by one of the conspirators in the attempted perpetration of the burglary, it was said that each and all of the conspirators were properly tried for the murder, albeit one of the defendants remained a distance from the scene of the crime.

Secondly, it appears from the charge of the court that the jury was required to find the conspiracy as laid in the indictment before a verdict of guilty could be rendered against the defendants, as witness the following : “The burden is on the State, under this bill of indictment, to satisfy *406you gentlemen beyond a reasonable doubt that they conspired, that is, entered into a conspiracy to do what — an unlawful act, yes, to do an unlawful act, but you want to find, gentlemen, more than to do an unlawful act. You want to find that they conspired to burn the property.” By this, the court intended to say, and did say, the State was required to prove the conspiracy as laid in the indictment. 15 C. J. S., 1137.

It is true, the defendants complain at the language, “you want to find,” as an expression of opinion in violation of C. S., 564, but its significance, we apprehend, was to place upon the State the burden of proving the conspiracy as charged, and no more. There was evidence, outside of the confessions, to support the inference of a conspiracy as laid in the bill. This distinguishes it from the Cohoon case, supra.

II. The defendant Gunter insists that as the confessions were not admitted in evidence against him, his motion for judgment of nonsuit should be allowed under C. S., 4643. There is ample evidence to connect the defendant Gunter with the conspiracy. He had talked with Bristol Ayers on several occasions about the strike. He was at the Truckers’ Terminal Avith his car on the evening of 21 June. Keyser and Smith were likewise there. Gunter’s ear was serviced with gas, and Keyser paid the bill. He had also borrowed a pistol from E. R. Caldwell some time prior thereto. Smith went from the Terminal to the scene of the holdup at the instance of Keyser, and the jury has concluded that Gunter was there under the same arrangement. The record supports the conclusion. On demurrer to the evidence, the court’s inquiry is directed to its sufficiency to carry the case to the jury or to support a verdict, and not to its weight or to the credibility of the witnesses. S. v. Rountree, 181 N. C., 535, 106 S. E., 669. The jury alone are the triers of the facts. S. v. Anderson, 208 N. C., 771, 182 S. E., 643. We are not permitted to weigh the evidence here. S. v. Fain, 106 N. C., 760, 11 S. E., 593.

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. S. v. Williams, 216 N. C., 446, 5 S. E. (2d), 314. 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. “Everyone 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.” S. v. Jackson, 82 N. C., 565; S. v. Anderson, 208 N. C., 771, 182 S. E., 643.

*407III. Tbe defendants, Bull, Lipscomb and Kessler, challenge tbe voluntariness of tbe Bull confession and its approval by Lipscomb and Kessler. Tbe matter was tbe subject of inquiry before tbe court in tbe absence of tbe jury. Tbe court found, upon competent evidence, tbat tbe statement, and its approval, bad been made freely and voluntarily. It was thereupon admitted in evidence against tbe named defendants.

Speaking to tbe subject in S. v. Moore, 210 N. C., 686, 188 S. E., 421, it was said: “In this jurisdiction, tbe competency of a confession is a preliminary question for tbe trial court, S. v. Andrew, 61 N. C., 205, to be determined in tbe manner pointed out in S. v. Whitener, 191 N. C., 659, 132 S. E., 603. Tbe court’s ruling thereon will not be disturbed, if supported by any competent evidence. S. v. Stefanoff, 206 N. C., 443, 174 S. E., 411; S. v. Christy, 170 N. C., 772, 87 S. E., 499; S. v. Page, 127 N. C., 512, 37 S. E., 66; S. v. Gosnell, 208 N. C., 401, 181 S. E., 323.”

IY. In reciting Gunter’s contentions to tbe jury, particularly in respect of tbe pistol, tbe court used tbe following language: “He said it bad a rusty place on it at tbe handle and tbe witness from Richmond County testified tbat Gunter got a pistol from him with a rusty place. He admits tbat would be a little suspicious, but be testified tbe witness from Richmond County said be let him have a pistol with a rusty place and tbe witness said be believed that was tbe pistol.”

This excerpt forms tbe basis of one of defendant’s exceptive assignments of error, and, standing alone, it may be subject to some criticism. It is to be noted, however, tbe court was stating tbe contentions of tbe defendant. Attention bad previously been called to tbe evidence tbat Gunter bad tbe pistol “at bis bouse, not at tbe burning,” and immediately tbe court continued, “tbat no one testified tbat was tbe pistol tbe truck driver saw, and be says tbat is tbe. only evidence against him, and be says tbat ought not to satisfy you beyond a reasonable doubt,” etc. Taken in its setting, and tbe fact tbat tbe inaccuracy was not called to tbe court’s attention, it would seem tbat it could hardly be held for reversible error. S. v. Sinodis, 189 N. C., 565, 127 S. E., 601. An error in stating tbe contentions of a party should be called to tbe court’s attention in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence. S. v. Whitehurst, 202 N. C., 631, 163 S. E., 683; S. v. Johnson, 193 N. C., 701, 138 S. E., 19; S. v. Barnhill, 186 N. C., 446, 119 S. E., 894; S. v. Baldwin, 184 N. C., 789, 114 S. E., 837.

Tbe defendants also point to tbe following instruction as erroneously stating tbe quantum of proof: “Now, gentlemen, tbe burden is on the State to satisfy you gentlemen tbat there was a conspiracy.” Tbe complaint directed against this instruction is tbat the “burden of satisfac*408ticca” falls short of “beyond a reasonable doubt,” the degree or intensity of proof required in a criminal prosecution. S. v. Schoolfield, 184 N. C., 721, 114 S. E., 466; Williams v. B. & L. Asso., 207 N. C., 362, 177 S. E., 176; Speas v. Bank, 188 N. C., 524, 125 S. E., 398. It is true that in criminal cases, upon a plea of traverse, proof of the guilt of the accused is required to be “beyond a reasonable doubt.” S. v. Singleton, 183 N. C., 738, 110 S. E., 846. And if the court had said no more on the subject than is contained in this instruction, quite a serious question would have been presented. But as already noted, in paragraph I above, the degree of proof required of the State to establish the conspiracy was correctly stated as “beyond a reasonable doubt.” The rule is, that exceptions to isolated portions of the charge will not be sustained, when considered contextually or as a whole, the charge correctly states the law. S. v. Williams, 219 N. C., 365, 13 S. E. (2d), 617; S. v. Elmore, 212 N. C., 531, 193 S. E., 713; S. v. Walker, 193 N. C., 489, 137 S. E., 429. “An exception of this sort must be considered in connection with the entire charge and is not to be determined by detaching clauses from their appropriate setting”—Adams, J., in S. v. Ellis, 203 N. C., 836. The charge is to be considered contextually. S. v. Lee, 192 N. C., 225, 134 S. E., 458.

There are other exceptions to the charge, all of which may easily be resolved in favor of upholding the trial by the same formula of contextual consideration. This is the rule universally observed and followed in determining exceptions to the charge. S. v. Johnson, 219 N. C., 757, 14 S. E. (2d), 792. A detailed examination of these exceptions would only result in the restatement of familiar principles. They are not sustained.

Y. We conclude that no reversible error has been shown in respect of the trial of any of the defendants on the bill charging a conspiracy. Hence, it is unnecessary to consider the exceptions addressed to the trial on the other bills as the judgments are the same on all the bills and they are made to run concurrently. S. v. Beal, supra. It may be added, however, that the exceptions have been considered seriatim, and none has been found of sufficient merit to warrant a disturbance of the result as to any of the defendants on any of the indictments. Indeed, the exceptions to the trial on the bills charging the actual burning and armed robbery are less meritorious than those above considered in respect of the charge of conspiracy.

It is observed 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 armed robbery and willful destruction of property as the result of an unlawful conspiracy. A jury of the vicinage has found, upon *409competent evidence, that the defendants herein are the guilty parties. They have no just grounds to complain at the conduct of the trial. They duly made their appeals to the jury and lost. The verdicts and judgments will be upheld.

No error.