State v. . Ritter

147 S.E. 733, 197 N.C. 113, 1929 N.C. LEXIS 161

• Court: Supreme Court of North Carolina
• Decided: April 24, 1929
• Status: Published

Opinion

Stacy, 0. J.,

after, stating the case: The gist of a criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme— the agreement to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means — and it is said that the crime is complete without any overt act having been done to carry out the agreement. S. v. Van Pelt, 136 N. C., 633, 49 S. E., 177; S. v. Dalton, 168 N. C., 204; 83 S. E., 693; S. v. Trammell, 24 N. C., 379. “If two or more persons conspire to do a wrong, this conspiracy is an act ‘rendering the transaction a, crime/ without any. step taken in pursuance of the conspiracy.” S. v. Brady, 107 N. C., 822, 12 S. E., 325. The crime of conspiracy consists of the conspiracy, and not of its execution. S. v. Younger, 12 N. C., 357.

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. The acts and declarations of each conspirator, done or uttered in furtherance of the common, illegal design, are admissible in evidence against all. “Every one 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.

But to make the acts and declarations of one person those of another, or to allow them to operate against another or others, it must appear that there was a common interest or purpose between them and that said acts were done, or said declarations uttered, in furtherance of the common design, or in execution of the conspiracy. S. v. George, 29 N. C., 321.

Proof of the acts done in pursuance of the common design by one of the conspirators, even though not on trial, and of his declarations made after the entry of the defendants into the combination, and up to the time wben tbe offense was committed, is competent against all. S. v. Turner, 119 N. C., 841, 25 S. E., 810; S. v. Anderson, 92 N. C., 732. But declarations of one of tbe conspirators, made after tbe offense bas been committed and in tbe absence of tbe others, are not competent against tbe others, because not uttered in furtherance of tbe common design. S. v. Dean, 35 N. C., 63.

Tbe declarations of Alex McKenzie, made after be bad abandoned the conspiracy, and not in furtherance of the common design, but in derogation of it, and in the absence of the other conspirators, while competent against him, yet, we think, are inadmissible as evidence against the defendants Ritter and Vaughn. S. v. Dean, supra; S. v. George, supra. Nor can the admission of this evidence be held for harmless error. It undoubtedly weighed heavily against the defendants.

There are other exceptions appearing on the record worthy of consideration, but as they are not likely to arise on another bearing, we shall not consider them now.

For error in the admission of incompetent evidence, as indicated, a new trial must be awarded; and it is so ordered.

New trial.