State v. Blanton

227 N.C. 517

• Court: Supreme Court of North Carolina
• Decided: June 5, 1947
• Status: Published

Opinion

Seawell, J.

The unusual volume of evidence and number of objections to the indictment, admission of evidence, and the charge of the court, render it impossible to take up defendant's exceptions by number, although they have received careful consideration. The discussion here must necessarily be topical,, and in summary, if we avoid the creation of a volume equal to that with which we are dealing. The exhaustive and able argument of counsel for the appellant and the equally thorough response of the Attorney-General have raised many questions which we cannot discuss at any length. We confine ourselves to a discussion of those points upon which the appellant seems to rely more strongly for his relief.

In appellant’s brief the motion to quash the indictment is succinctly put on two grounds; first, that it was found wholly on hearsay and incompetent evidence; second, that it fails to charge a crime, and is too vague or wanting in substantial averments to give the accused the information necessary for his defense or protect him against subsequent prosecution. In support of the first objection the defendant undertook to put on W. I. Gatling and Edward L. Cannon, claimed to be the only witnesses examined by the grand jury. Their testimony was rejected. No other evidence was tendered. Conceding that an indictment is subject to be quashed when founded solely upon incompetent evidence (State v. Coates, 130 N. C., 701, 41 S. E., 760; State v. Moore, 204 N. C., 545, 168 S. E., 845; State v. Deal, 207 N. C., 448, 177 S. E., 332; State v. Beard, 207 N. C., 673, 178 S. E., 242), yet public policy in this State will not permit an examination of the witnesses testifying before the grand jury in order to show tbe nature and character of evidence upon which the bill was found. State v. Levy, 200 N. C., 586, 158 S. E.; 94; State v. Dixon, 215 N. C., 161, 1 S. E. (2d), 521; State v. Dale, 218 N. C., 625, 12 S. E. (2d), 556.

To fully understand the second objection we must refer to the theory of the case on which it is advanced. The brunt of the attack is made on the “unnumbered” first paragraph of the indictment on the theory that some rule of law, not clearly stated, requires that the indictment shall be analyzed into 11 parts, each of which is to be considered as a count, the main charge of conspiracy being included in the first unnumbered paragraph. If that were true, many of the references in this paragraph would be too vague to survive the attack since, taken alone, not only are many of the essential averments not present, but the trial court and the accused himself might be left in doubt as to the objective of the conspiracy, — what was intended to be accomplished by it. But taken as a whole the objection loses point. "While each of the ten numbered paragraphs formally repeat the charge of conspiracy they are sufficiently definite and complete in the particulars claimed to be wanting in the unnumbered paragraph as to contain all the substantial averments necessary to conviction. The trial court construed it as a one-count indictment with the ten numbered paragraphs intended as specifications of particulars omitted from the first and we are of the opinion that his interpretation is not only consistent with the grammatical expression and connection within the bill itself, but is a reasonable and proper legal construction. It certainly was not the intention of the indictment to charge eleven independent conspiracies, and the formal restatement of the fact of conspiracy in each of them does not destroy the continuity. The type of conspiracy to which the indictment is aimed was broader in its purposes than the separate instances in which the overt acts were specified, together with the particular overt instances in which the suborned perjury was used, its character and its purpose. The indictment was, to use the vernacular, intended to charge a conspiracy to run a wholesale divorce mill with perjured testimony as to residence as its mode of operation. The indictment is singularly like a preview of the evidence in the case. The appeal made by the syndicate was to residents of South Carolina, where divorces are not obtainable.

It might have been differently worded and organized, it is true, but we do not find in it any essential defect that is not cured by our statute of jeofailes, G. S. 15-153. Taken as a whole, it fairly charges the crime intended and was sufficient to put the accused to his defense. "We do not find wanting any substantial averment of fact or circumstance necessary to support the indictment.

It was not necessary for the indictment for conspiracy to describe the subject crime with legal and technical accuracy. State v. Dale, supra; Williamson v. U. S., 207 U. S., 425, 52 L. Ed., 278; see also 15 C. J. S., “Conspiracy,” p. 1112, ss. 80, 85; as to subornation of perjury see G. S. 14-210; and as to the crime itself, see G. S. 14-209. State v. Ritter, 197 N. C., 113, 147 S. E., 811; State v. Lea, 203 N. C., 13, 164 S. E., 737; State v. Abernethy, 220 N. C., 226, 17 S. E. (2d), 25; State v. Smith, 221 N. C., 400, 20 S. E. (2d), 360. Tbe crime charged is tbe conspiracy —not perjury or tbe subornation thereof.

Most of tbe exceptions to tbe evidence relate to tbe principle that tbe acts and declarations of an alleged co-conspirator are not admissible in evidence against another charged with participation in tbe conspiracy unless there is some evidence connecting tbe latter with tbe conspiracy; and then only such declarations and acts as. are in furtherance of tbe common purpose, and occur while tbe conspiracy is still in progress. State v. Wells, 219 N. C., 355. Of that character are objections to many exhibits of tbe State, particularly tbe receipts given by Blanton for money paid him in connection with tbe divorces. In one instance such a receipt bears tbe name of W. T. Shore, signed by Blanton. An examination of tbe record, however, discloses that when these exhibits were introduced there was other evidence engendering legitimate inferences of Shore’s connection with tbe conspiracy, as will be seen by further reference. Tbe trial judge was careful in protecting tbe defendant’s rights in this respect. It may be observed here that tbe rules to which we have referred have nothing to do with tbe order of introduction of evidence. Tbe difficulties of proving conspiracy are notorious but evidence of tbe declaration or act of a co-defendant in tbe furtherance of tbe object of conspiracy will not be excluded if evidence aliunde shows tbe participation. State v. Dale, supra.

Tbe several objections to tbe charge of tbe court are in many instances so connected with defendant’s demurrer to tbe evidence and motion for judgment as of nonsuit that separate discussion would be repetitious.

Tbe evidence relied upon to convict tbe appealing defendant was largely, but not wholly, circumstantial. There is in this ease “a development and connotation of circumstances” which seem to justify consideration by tbe jury. United States v. Glasser, 315 U. S., 60, 80; United States v. Manton, 107 Fed. (2d), 824, 839; Direct Sales Corp. v. United States, 319 U. S., 703, 87 L. Ed., 1674. Tbe validity of inferences of bis guilty participation in tbe conspiracy be so much- aided and to tbe success of which be was indispensable, drawn from tbe long association with Blanton and Baird, and their South Carolina clientele, and daily contacts made in tbe workshop where tbe frauds were devised, and tbe number of appearances made by him as an attorney from day to day in guiding these fraudulent cases to a successful issue in tbe court,— inferences of participation arising from these facts would scarcely be questioned except from tbe recurrence in tbe State’s evidence of statements by several of tbe witnesses that Shore was not told of the falsity of the claim of residence, or that he was not supposed to know, or that witnesses were told not to tell him about it. Thus is uncovered a peculiar but apparently necessary feature of the conspiracy, and upon it the inquiry arises: Whether, as contended by the defendant Shore, a practicing attorney of, we must assume, at least ordinary acumen, piloted through the dangerous channels of the court, upon his own admission, upwards of 30 fraudulent divorce cases — (other evidence suggests 100)'— in each of which there, was a pre-conference with the client, and to the end he was kept ignorant of the facts, an innocent dupe of the ring; or, upon an alternative view, that a spurious appearance of innocence on the part of Shore had to be maintained in dealing with the court in the critical process of judicial investigation, and was itself conspiratorial.

The trial judge gave it as a contention of the State that the latter view prevailed in the alleged prosecution of the aims of the conspiracy, and thát the State relied upon it as one of the constituent factors of the scheme. In the exception to the bracketed portion of the charge dealing with this feature we find the brunt of the objection to the judge’s instructions, and we forego discussion of others offering less serious challenge to the result.

The circumstance pointed out, — consistent recurrence in the office of Blanton of the understanding that the falsity of the claim of residence should not be made known to Shore, — had its fitting counterpart in the behavior of Shore, — not perfect perhaps in role, but nevertheless so present as to betray a sensitivity on that point,- — -when he sometimes examined the applicants as to the truth of the -allegations as to two years separation and seemingly avoided the equally important question of residence, upon which the whole conspiracy depended.

Shore was not merely a “front,” an apple-peeling colonel of plausible appearance, sitting in the front office to give an air of respectability to the operations of Gentle Grafters in an O. Henry story. He was literally the mouthpiece of the setup — the one means of entrance the Blanton office had to the courts of justice, with their traditional standards of respectability and canons of rectitude. A mishap in that department, which might easily occur, would put an end to the fraudulent scheme, destroy both the conspiracy and the conspirators.

Whether the inferences may be strong or weak, it is not our office to say. The whole circumstances surrounding the actors and bearing upon their alleged conspiracy, the acts and declarations of those engaged in it and their interdependence are legitimate subjects for consideration by the jury. And we do not.find that the pertinent passages in the charge are to.be held for error. It is-to be noted here, however, that in two instances the rule apparently imposed upon the witnesses not to speak to Shore of the fact of their South Carolina residence broke down. Mrs. Barr testified that in the presence of Blanton and Baird and others in the office just prior to the hearing of her case in court, she asked Shore whether it would be all right t.o proceed with the trial knowing that she lived in South Carolina. He answered, “Yes.” At another time Blanton was telling them “what to swear,”- — -turned to Shore with the question, “Isn’t that right, Bill?”, and Shore replied, “Yes.” These expressions must be taken in the light of the circumstances under which they were made. Ve cannot say that they are free from inferences tending to show a knowledge on the part of Shore of the unlawful nature of the acts in which he was engaged, and his guilty participation in the conspiracy. We do not mean by this reference to evidence specifically challenged, to suggest that it stands alone. The evidence which we find no necessity of analyzing, arguendo, is ample to support conviction. The disbarment of the defendant followed as a legal consequence of his conviction.

We do not find in the record or in the exceptions of the appellant, which we have carefully considered, any sound reason for disturbing the result of the trial. We find

No error.'