State v. . Turner, 25 S.E. 810

State v. . Turner

25 S.E. 810 | N.C. | 1896

The inhibition contained in the Constitution (Art. IV, sec. 11) applies neither to the holding by any judge of the Superior Court of one or more regular terms of said court by exchange with some other judge, and with the sanction of the Governor, nor to the holding of special terms under the order contemplated in section 913 of The Code. S. v. Lewis, 107 N.C. 967; S. v. Monroe, 80 N.C. 373; S. v.Speaks, 95 N.C. 689. The intent of the framers of the Constitution was to change the then existing system under which all of the courts of a district were generally held by a resident judge, so that the regular ridings of a whole district or circuit by any given judge would not occur oftener than once in four years. In case of holding specified terms by exchange or special terms by assignment, it is left to the Chief Executive to give or withhold his assent, and it must be assumed that he will exercise his discretionary power of selecting and assigning those who shall hold special terms with an eye to the best interest, of persons directly interested, but if there were any grounds for doubting the authority of the Governor to issue a commission to the judge who presided, and to thereby constitute him a de jure officer in the discharge of that duty, the fact that the Governor appointed him and the public (846) submitted to his authority constituted him de facto judge of the court which he held, and rendered all of his acts in that capacity as binding and valid as if he had acted de jure. S. v. Lewis, supra. Were it otherwise, the public would be subjected to the hazard of having all of the adjudications of a court presided over by an incumbent judge acting by virtue of a commission declared invalid in all cases where, after a course of litigation, the lawful right to his office is declared to be in a contestant. An illustration could be found in our own judicial annals in a case where Judge Wilson was commissioned as judge of the Superior Court, but was ultimately, and after holding a number of courts, ejected from the office under the decision of this Court in Cloud v. Wilson,72 N.C. 155.

David Parker, a witness for the State, "gave a full and detailed account of his connection with the defendants for a number of years previous, and of their place and methods of together cheating and defrauding the insurance companies." He explained "that he was the agent of the defendants to work up their business for them, and that when a policy had been fraudulently obtained upon the life of diseased or aged persons, he, Parker, was to procure a purchaser for it, who would take it and keep the premiums paid up on it." Parker then testified "that William (Bill) Fisherwas also the agent of the defendants, that they all said he was." Among other things Parker was allowed to testify as follows: "I saw Bill Fisher offer to sell a policy in the Massachusetts Life Association on the life of Melissa Guthrie." The defendants excepted *530 to the admission of that testimony after objection to its competency. The defendants were charged in the indictment with combining and conspiring to cheat the Massachusetts Benefit Life Association and (847) others of divers large sums of money. William Fisher was not a defendant, and the defendants contend that his declarations were erroneously admitted as evidence against them.

The same rules of evidence that govern the trial of other criminal offenses apply when the indictment is for conspiracy. But there is a marked distinction growing out of the manner of their application. Ordinarily it is incumbent on the prosecution to prove participation in an act, but on trials for conspiracy the State must show participation in a design, and the facts in issue are:

(1) Whether there was an agreement for an alleged purpose.

(2) Whether a defendant charged participated in the design, and

(3) Whether the common purpose was carried into execution.

Here the testimony tended to prove an agreement between the defendants to constitute Fisher (who is not indicted) their agent to do the same unlawful and fraudulent acts that the witness Parker had been doing in furtherance of a common purpose to cheat certain insurance companies, and to show that the agreement, which they "all said" they had made with Fisher, culminated in similar covinous acts. All who aid, abet, counsel, or procure others to commit misdemeanors are principals. 1 Roscoe Cr. Ev. Star, p. 189. Conspiracy is under the law of North Carolina a misdemeanor. S. v. Jackson, 82 N.C. 565. When once evidence of a common design is shown, and two or more of the conspirators are indicted and on trial, testimony tending to prove the unlawful acts of a person not on trial or not indicted, in furtherance of such purpose, is clearly competent. Those who aid, abet, counsel or encourage, as well as those who execute their designs, are conspirators, and certainly where the unlawful act is done within the limits (848) of the State in whose courts the indictment is found, as in our case, the conspirators, who only participated in the design, may be tried and punished without joining in the indictment the perpetrator of the overt act shown.

There was evidence reasonably sufficient, if believed, to warrant the inference of a conspiracy, and it was properly left to the jury to pass upon its sufficiency. S. v. Matthews, 80 N.C. 417; S. v. Patterson,78 N.C. 470. Meantime, it was the province of the court, upon hearing it, to decide that it rendered competent not only proof of the acts done in pursuance of the common design by a coconspirator, even though not on trial (S. v. George, 29 N.C. 321), but his declarations made after the entry of the defendants into the combination, and up to the time when the offense was committed. S. v. Anderson, 92 N.C. 732. When *531 the common design has been proved, the act of any one of the conspirators in furtherance of it may be shown by any competent evidence. S. v. George,supra. It is competent to show a criminal act by confession of a party as well as by means of direct proof by the testimony of others. While the declarations of Fisher as to the participation of the defendants, either in the purpose to commit the offense or the act of selling the policies, if made after the sale, would have been clearly inadmissible (S. v. Dean,35 N.C. 63), the State was not precluded, after laying the foundation by showing the declarations of the defendants that he was their agent for that purpose, from proving his naked confession of the act of selling certain policies, as, according to the testimony of Parker, he had agreed to do, for the benefit of the defendants, and had subsequently attempted in his presence to do.

It has been held that for the purpose of proving the ownership (849) of property by a corporation, when charged in an indictment, it is not necessary to produce the certificate of incorporation or a copy of it in the private acts published by the authority of the State, but that it is sufficient to show that the corporation carried on business under the corporate name set forth in the indictment. S. v. Grant,104 N.C. 908; S. v. R. R., 95 N.C. 602. But if it were conceded that the testimony of the witness Rippy, that the companies mentioned held themselves out as insurance companies, was insufficient, we hold that the certificates of incorporation were clearly competent under the rule laid down in Barcello v. Hapgood, 118 N.C. 712, 730. For the reasons given the judgment of the court below is affirmed.

AFFIRMED.

Cited: S. v. Noe, post, 850, 852; Clerk's Office v. Comrs., 121 N.C. 129;S. v. Register, 133 N.C. 749; S. v. Foster, 172 N.C. 963.