State v. Horton

170 S.E.2d 466, 275 N.C. 651, 1969 N.C. LEXIS 481

Opinion

BRANCH, J.

Defendant assigns as error the denial of her motions for judgment as of nonsuit and contends that she was denied due process and equal protection of the laws when the Court of Appeals failed to apply the rule that the State is bound by its uncontradicted evidence.

In State v. Gallimore, 272 N.C. 528, 158 S.E. 2d 505, this Court defined a conspiracy as follows:

“ '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 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. State v. Davenport, 227 N.C. 475, 42 S.E. 2d 686; State v. Whiteside, 204 N.C. 710, 169 S.E. 711; State v. Knotts, 168 N.C. 173, 83 S.E. 972. Many jurisdictions follow the rule that one overt act must be committed before the conspiracy becomes criminal. Our rule does not require an overt act.”

Since our rule does not require an overt act, an attempted withdrawal by one of the conspirators before an overt act in furtherance of the agreement will not prevent a verdict of guilty of conspiracy. 16 Am. Jur. 2d, Conspiracy, Sec. 29, at 142. Nor is it necessary for the purpose of the conspiracy to be accomplished in order for a verdict of guilty to stand. Goldman v. United States, 245 U.S. 474, 62 L. ed. 410. There can be no conspiracy unless there is a union of wills, and if only one person feigns acquiescence in a proposal of another to pursue an unlawful enterprise, there is no conspiracy. One person cannot conspire with himself. State v. Tom, 13 N.C. 569; 15A C.J.S., Conspiracy, § 37, p. 730. However, if three or more conspire to commit a crime, the fact that there is a union of purpose between only two will not bar a prosecution and conviction of the two. 15A C.J.S., Conspiracy, § 37, p. 731. The unsupported testimony of a co-conspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution. State v. Tilley, 239 N.C. 245, 79 S.E. 2d 473.

The rule relating to sufficiency of evidence to carry a case to the jury is concisely stated in the case of State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431. We quote therefrom:

“ ‘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.’ The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury. S. v. Simpson, ante, 325; S. v. Duncan, ante, 374; S. v. Simmons, supra; S. v. Grainger, 238 N.C. 739, 78 S.E. 2d 769; S. v. Fulk, 232 N.C. 118, 59 S.E. 2d 617; S. v. Frye, 229 N.C. 581, 50 S.E. 2d 895; S. v. Strick land, 229 N.C. 201, 49 S.E. 2d 469; S. v. Minton, 228 N.C. 518, 46 S.E. 2d 296; S. v. Coffey, 228 N.C. 119, 44 S.E. 2d 886; S. v. Harvey, 228 N.C. 62, 44 S.E. 2d 472; S. v. Ewing, 227 N.C. 535, 42 S.E. 2d 676; S. v. Stiwinter, 211 N.C. 278, 189 S.E. 868; S. v. Johnson, supra.”

In the instant case the decision must stand or fall upon the testimony of two alleged co-conspirators who, in the course of their testimony when offered as State’s witnesses, testified as to the circumstances surrounding the alleged conspiracy, and in their further testimony stated that they never intended to harm defendant’s husband. Defendant contends that the State, offering them as its witnesses and worthy of belief, has made out a complete defense entitling defendant to nonsuit. The State, on the other hand, contends that the testimony of the alleged co-conspirators shows such circumstances and conduct as to carry the question of defendant’s guilt to the jury.

It is well established in this jurisdiction that a party cannot introduce testimony to impeach or discredit the character of his witness, and when in a criminal action a complete defense is established by the State’s evidence, a defendant may avail himself of such defense by a motion for judgment as of nonsuit. Yet, if the witness testifies to facts against the State’s contentions, the State is not precluded from showing the facts to be other than as testified to by the witness. State v. Jarrell, 233 N.C. 741, 65 S.E. 2d 304; State v. Todd, 222 N.C. 346, 23 S.E. 2d 47; State v. Cohoon, 206 N.C. 388, 174 S.E. 91; Smith v. R. R., 147 N.C. 603, 61 S.E. 575. It is equally well established that when the substantive evidence offered by the State is conflicting — some tending to inculpate and some tending to exculpate the defendant — it is sufficient to overrule a motion for judgment as of nonsuit. State v. Mitchum, 258 N.C. 337, 128 S.E. 2d 665; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580; State v. Mangum, 245 N.C. 323, 96 S.E. 2d 39; State v. Tolbert, 240 N.C. 445, 82 S.E. 2d 201.

It must be borne in mind that the State offered no evidence to impeach the testimony of its witnesses except for questions as to the past record of the witness James, which were asked and answered without objection. The State vouched that witnesses were worthy of belief as to all of their testimony, and where there was conflict in the testimony, it was for the jury to believe all the testimony or to believe a part and reject a part, or to reject it all, because it is the trier of the facts. Brown v. Brown, 264 N.C. 485, 141 S.E. 2d 875; State v. Mangum, supra; State v. Henderson, 180 N.C. 735, 105 S.E. 339; State v. Ellis, 97 N.C. 447, 2 S.E. 525; State v. Overton, 75 N.C. 200.

In the case of Smith v. R. R., supra, we find the following:

“While it is accepted doctrine that one who offers a witness 'presents him as worthy of belief/ and except, perhaps, where an examination is required by the law, as in the cases of subscribing witnesses to wills and deeds ... a party will not be allowed to disparage the character or impeach the veracity of his own witness, nor to ask questions or offer evidence which has only these purposes in view, it is always open to a litigant to show that the facts are otherwise than as testified to by his witness. . . . And this he may do, not only by the testimony. of other witnesses, but from other statements of the same witness, and at times by the facts and attending circumstances of the occurrence itself, the res gestee.” (Emphasis ours)

The above was quoted with approval in the case of State v. Cohoon, supra. See also Worth Co. v. Feed Co., 172 N.C. 335, 90 S.E. 295.

Defendant relies on the case of Odneal v. State, 117 Tex. Cr. App. 97, 34 S.W. 2d 595, where an accomplice testified on direct examination that he had entered into a conspiracy with the defendant and testified on cross-examination that he never intended to carry out the agreement. The court submitted this case to the jury on the basis of conflict in the testimony requiring the jury to decide whether the witness intended to carry out the conspiracy.

Defendant contends that Odneal v. State, supra, is distinguishable from the instant case because here witnesses only testified as to what they were paid to do on direct examination, and testified on cross-examination that they never intended to do it. The fallacy in defendant’s argument is that a criminal conspiracy may be established by circumstantial evidence from which the conspiracy may be legitimately inferred. State v. Butler, 269 N.C. 733, 153 S.E. 2d 477. The validity of the type of evidence here relied upon by the State was recognized in the case of State v. Whiteside, 204 N.C. 710, 169 S.E. 711. There, the defendants Whiteside and Cannon were charged with conspiracy to rob the Imperial Theatre in Asheville, North Carolina. Defendant Whiteside pleaded guilty; defendant Cannon pleaded not guilty. The State offered evidence which tended to show that defendant Whiteside was caught in the act of robbing the theatre, together with evidence that defendants had been acquainted for over a year and had “bummed” their way into Ashe-ville on a train; that they both spent the night at the Salvation Army and on the next day saw State’s witness McDuffie. McDuffie testified that Cannon asked him if the Imperial was a good place to rob. Whiteside testified that Cannon had nothing to do with the robbery and that he did not even know Cannon. He further testified that State’s witness McDuffie suggested to him that the Imperial Theatre was a good place to rob and that he (McDuffie) would help commit the robbery. The jury returned a verdict of guilty as to Cannon, who appealed. This Court, in holding that there was sufficient evidence to overrule defendant’s motion as of nonsuit, stated:

“Direct proof of the charge (conspiracy) 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, sufra. 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 RCL, 1088.

“So, in the instant case, notwithstanding the positive testimony of Whiteside to the contrary, and the rather 'broken reed’ upon which the State is compelled to rely, we think the evidence is sufficient to carry the case to the jury. Its credibility was for the twelve.”

Thus, the situation of the parties and their relations to each other, together with the surrounding circumstances and the inferences deducible therefrom, may furnish ample proof of conspiracy even in the face of positive testimony to the contrary.

Defendant also contends that the case of Woodworth v. The State, 20 Tex. Cr. App., 375, supports her position. There, the witness Hunt testified that he intended to trap defendant Woodworth in the act of committing a burglary. He agreed with Hunt on a specific time when he would help him commit the burglary, but as soon as the plan was made Hunt dispatched a note advising the Sheriff of the plan so that he could be on hand at the proper time and place and make the arrest. The Sheriff testified that he received the note and acted accordingly. This case is clearly distinguishable from the instant case because there the surrounding circumstances and the testimony of the witnesses, without contradiction or conflicting inferences, showed no unity of purpose to commit an unlawful act.

Defendant seriously argues that in addition to the statement of the alleged co-conspirators that they did not intend to harm her husband, certain acts, such as giving Deal a false identity, and the scattering of cigarette butts in the farmhouse to make it appear that they had lain in wait for her husband, tended to negate any union of purpose to do an unlawful act. In this connection the witness James, referring to Deal, testified: “He is a friend of mine and he is from out of town. I wanted to get somebody she didn’t know . . . If it was someone around here that would kill him, she might have known about it.” The witness’ interest in further concealing the identity of a friend about to be asked to engage in an unlawful act is understandable. The other acts which defendant contends tend to negate the alleged conspiracy cannot be related to the night that James agreed to obtain someone to do “a little more than beat up or rough up” defendant’s husband. One of the strongest indications of an unlawful agreement is found in the testimony of the witness Deal. Deal testified that after the telephone call from James (which must have been during the third meeting between James and defendant and in defendant’s presence), James came to his home in Taylorsville and at that time stated to him that “He knowed an old gal in Statesville that we could get a little piece of money off of, and said that she wanted to get something done to her husband, and he said that she wanted to go further than roughing him up, and I said that I wouldn’t do anything like that.” This testimony permits a strong inference that up until the very moment that Deal refused to go along with the plan to murder defendant’s husband, the alleged co-conspirator James still steadily pursued the unlawful object of obtaining someone to murder defendant’s husband. Without attempting to review all of the indicia of conspiracy found in the State’s evidence, we note that $2550 in cash was accepted by James and Deal from defendant, and James explained the purpose of the payment by testifying, “I received the money for doing just what we were talking about, to kill him.” The testimony here referred to and the other facts found in the State’s evidence are all colored by a delay of several months before either of the alleged co-conspirators talked with the police.

Surely, without the statement of the alleged co-conspirators that they never intended to harm defendant’s husband, there was suffi cient evidence to raise an inference of intent to form a conspiracy between James and defendant — and probably between defendant, James and Deal. The denial of intent by both of the alleged conspirators created a conflict in the State’s evidence which, upon a consideration of the evidence in a light most favorable to the State, presented a question for the jury.

The decision of the Court of Appeals is

Affirmed.