State v. . Wrenn

151 S.E. 261, 198 N.C. 260, 1930 N.C. LEXIS 316

• Court: Supreme Court of North Carolina
• Decided: January 22, 1930
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: It is not seriously contended that all three of the defendants participated in any one of the transactions appearing of record. The dealings in connection with the school notes relate only to Wrenn and Faw, while those touching the road notes involve only Wrenn and Foster. And we have discovered no evidence of sufficient probative value to establish a conspiracy between any two of the defendants.

The gist of a. conspiracy has been described as an unlawful concurrence of two or more persons in a wicked scheme — a combination to* do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means — and it is said that no overt act on the part of any of the eonspira.-tors is necessary to complete the crime, but the intent to accomplish some crime or unlawful purpose, or to bring about some end, not in itself criminal or unlawful, by criminal or unlawful means, is a necessary element of the offense. S. v. Ritter, 197 N. C., 113, 147 S. E., 733; S. v. Martin, 191 N. C., 404, 132 S. E., 16; S. v. Dalton, 168 N. C., 204, 83 S. E., 693; S. v. Van Pelt, 136 N. C., 633, 49 S. E., 177; S. v. Trammell, 24 N. C., 379; 5 R. C. L., 1060. “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 conspiracy is the crime, and not its execution. S. v. Younger, 12 N. C., 357; 5 R. C. L., 1066. It requires the confederation of at least two, as one person cannot conspire alone, and of course it may include more. S. v. Diggs, 181 N. C., 550, 106 S. E., 834; S. v. Christianbury, 44 N. C., 46; 5 R. C. L., 1078.

It is true, of course, that the criminal character of a combination, agreement or confederacy may be inferred from facts and circumstances, where they point unerringly to that end, but here the situation of the parties seems to repel any idea of a conspiracy, certainly as between Wi’enn and Faw, and while there may be more reason for inferring a combination between Wrenn and Foster, we have concluded that the evidence is not sufficient to establish this either. Faw had profited nothing by the machinations of "Wrenn, nor does it appear that'Foster did so knowingly, or that he was “consenting unto the wrong.” So fár as the record discloses, both Faw and Foster seem to have been no more than victims of misplaced confidence. This is not enough to hold them for a conspiracy.

It follows, therefore, that the motion of the appealing defendants for judgment as in case of nonsuit should have been allowed: The motion will be sustained here as provided by C. S., 4643.

Reversed.