State v. . Diggs

106 S.E. 834, 181 N.C. 550, 1921 N.C. LEXIS 145

Opinion

Stacy, <7.

Tbe defendants were tried jointly, and rightly so. But we think bis Honor erred in charging tbe jury tbat a verdict of guilty could not be returned against one of tbe defendants singly and tbat all should be acquitted unless as many as two were convicted. It is true the crime of conspiracy cannot be committed by one person alone. It requires tbe confederation of at least two and, of course, it may include more. S. v. Christianbury, 44 N. C., 46; S. v. Younger, 12 N. C., 357. But tbe bill charged tbat tbe defendants conspired among themselyes and with others. Hence, tbe jury might have found tbat only one of tbe defendants participated in tbe alleged offense with another or others not on trial. Tbe instruction would have been correct bad there been no evidence tending to incriminate others along with the present defendants, or bad tbe indictment not been cum milltis aliis. S. v. Tom, 13 N. C., 569. Under tbe instant circumstances, however, we think tbe charge, as given, was prejudicial to tbe defendants, entitling them to a new trial.

There are other exceptions, appearing on tbe record, worthy of consideration, but as tbe case goes back for another bearing, and as they may not occur again, we refrain from further comment.

New trial.