We shall first consider tbe exceptions to tbe refusal of bis Honor to sustain tbe motions to quash tbe bills of indictment.
Notwithstanding tbe various grounds advanced for quashing these bills, tbe motions in fact point out but two alleged defects in' them: (1) Tbat tbe bills do not set out in tbe first count tbe plan, scheme or contrivance by which tbe conspiracy was to be executed; and (2) tbat tbe indictments do not allege any offense against tbe criminal laws of tbe State.
A bill of indictment, charging “a conspiracy to cheat and defraud need not charge tbe means to be used” in tbe execution of tbe conspiracy, S. v. Howard—Gold Brick Case,
Tbe allegations contained in tbe second count in these respective bills of indictment are sufficient to charge a violation of tbe statute, G. S., 14-100. Among other things, it is provided in this statute: “That it shall be sufficient in any indictment for obtaining . . . property by false pretenses to allege that tbe party accused did tbe act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any OAvnership of tbe chattel, money or valuable security; and, on tbe trial of any sucb indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that tbe party accused did tbe act charged with an intent to defraud.”
The action of the court below in overruling the motions to quash must be upheld under our decisions, among which we cite S. v. Abernethy,
When these bills of indictment are tested by the principles laid down in the above decisions, we hold them to be sufficient to withstand the motions to quash.
The defendant Davenport assigns as error the refusal of his Honor to allow his challenge for cause, of H. L. Elks, a juror in the trial below. Mr. Elks was called as a juror after the defendant had exhausted all his peremptory challenges. In response to a question by counsel for the defendant, Davenport, Mr. Elks stated that from what he had seen in the papers it would require evidence to remove his opinion or impression against the defendant, Davenport. Upon further questioning by the Solicitor, he stated that he could give Davenport a fair trial “if he pleads not guilty.” Whereupon the court propounded the following question: “Are you certain that you can sit there and try the case on the evidence as it shall develop during the trial, and the charge of the Court and the argument of counsel and render a fair and impartial verdict, despite anything you may have heard or read ?” Mr. Elks replied, “I’ll give him a fair trial; Yes, sir, I could do that.” The challenge was thereupon overruled.
It is provided by statute, G. S., 9-14, that the judge “shall decide all questions as to the competency of jurors,” and his rulings thereon are final and “not subject to review on appeal unless accompanied by some imputed error of law,” S. v. DeGraffenreid,
The appealing defendant assigns as error the refusal of his Honor to sustain his motions for judgments as of nonsuit as to each count in both bills, interposed at the close of the State’s evidence and renewed at the close of all the evidence.
The defendant devotes 93 pages of his brief to a discussion of these motions. It is well settled with us that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be
The defendant concedes the correctness of the rule as stated above, but insists that since the State must prove beyond a reasonable doubt the essential elements necessary to constitute the crime of false pretense, a failure of proof as to any one or more of the elements requires the entry of a judgment as of nonsuit. To be sure the court below in passing upon these motions should have sustained them unless there was some competent evidence before him, when considered in the light most favorable to the State, which tended to support the essential allegations in the bills to which the respective motions were directed. A trial judge, however, in passing upon such motions, under the provisions of G. S., 15-173, is not bound by the measure or quantum of proof by which the State must prove a defendant’s guilt before the jury can convict him. Stacy, C. J., in speaking for the Court in S. v. Adams,
The two eases under the separate bills of indictment, were consolidated for the purpose of trial. Hence, we shall treat these bills as one, and the counts contained in the two bills as if separate counts in one bill, for such was the legal effect of the order of consolidation.
The appealing defendant and certain other individuals are charged with conspiring to commit a felony. “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
Furthermore, it is not necessary to join all tbe known members of a conspiracy in one bill of indictment. Eacb conspirator may be tried separately, if it appears upon tbe face of tbe. bill of indictment tbat there was another with whom tbe defendant conspired.
In proving a conspiracy, it is not necessary to establish tbe acts charged by direct proof. “It is not necessary to prove tbat tbe defendants came, together and actually agreed upon tbe unlawful purpose and its pursuit by common means.”
It may be conceded tbat one conspirator was tbe original instigator of tbe unlawful plan or purpose; and may have more or less dominated bis co-conspirators, nevertheless all who knowingly participate in tbe execution of tbe unlawful purpose are equally guilty. “When a conspiracy is established, everything said, written, or done by any of tbe conspirators in execution or furtherance of tbe common purpose is deemed to have been said, done or written by every one of them, and maybe proved against each. It is immaterial when a defendant entered into or became a party to tbe conspiracy, or bow prominent or inconspicuous a part be took in tbe execution of tbe unlawful purpose; be is responsible to tbe fullest extent for everything tbat is said and done pursuant to tbe plot.”
The defendant contends that since he was indicted with C. T. Junes, Johnnie Heath and J. R. Hunning, in bill No. 2397; and Jones died after the indictment was returned and before the trial, and the State took a nol. pros, as to Heath and Hunning during the progress of the trial; he is entitled to a nonsuit on both counts on the ground that Davenport could not conspire with himself and no one was left in the case with whom he could have conspired. We do not so hold. The identical point raised here was decided in the case of S. v. Alridge,
We deem it unnecessary to discuss the legal status of Heath and Hunning after the State took a nol. pros. as to them, since the evidence on this record tends to incriminate Jones and is sufficient to have carried the case to the jury as to Davenport and Jones on the charges contained
The defendant also contends that no one was misled by his statements or his advertisements to the effect that he was solvent, and his business had been investigated and found to be legal. He contends the truth or falsity of those statements is a matter of law, and says in his brief: “The aphorism, 'There are none so blind as those who will not see,’ applies here with full force and vigor, and it is argued that this blindness was caused solely by the dazzling light of 260 per centum per annum, and by no other consideration.” We concede the Davenport Plan to be one calculated to attract those interested in quick profits. It could also be conceded that a small loan.business might be operated in such a manner as to enable its operator to pay 5% interest per week by loaning the money at a higher rate of interest, if the operator could escape the penalty of our usury laws, but such a concession would bring no comfort to this defendant in view of the evidence disclosed on this record. The appealing defendant, his co-defendants, and other associates, knew they were taking in enormous sums of money, that not more than 10% of it was loaned out. They knew the produce stores were being used as a “front” for the loan business and were being operated at a loss. Moreover, according to the evidence disclosed on this record, exclusive of the New Bern Stores, the stores in Greenville, Rocky Mount, Kinston and Goldsboro received in deposits the sum of $85,643.70 and issued checks drawn on the Branch Banking & Tr.ust Oo., New Bern, N. C., for those
The defendant further contends that there is no evidence to support the charges against him because he offered evidence to the effect that he paid all withdrawal checks presented to him or to the Branch Banking & Trust Company, New Bern, N. C., prior to the time the representative of the State Bureau of Investigation began an examination of his loan operations. Even so, the evidence on this record tends to show that Davenport at no time during July or August, 1944, was earning sufficient income from his loan business to pay more than a small fractional part of the interest he had obligated himself to pay his depositors, even before taking into consideration the other expenses incurred in connection with the operation of his business. According to the evidence, he was operating on deposits and not earnings, and the records at each store clearly establish this fact. The contention of solvency on the part of Davenport at any time in July or August, 1944, is an absurdity in the light of the evidence as disclosed by the record.
The transcript of the evidence, exclusive of the exhibits, covers 935 pages of the record, which, including exhibits, contains 1,613 pages. Obviously, it is not practical for us to quote all or even a substantial part of the evidence. But when the evidence on this record is tested by the principles laid down in the authorities and decisions' cited herein, it is sufficient to sustain the verdict on all the counts in which this defendant is named.
It is also contended by the defendant that the conspiracy counts in the indictment, charge only a misdemeanor and as a.matter of law, are merged in the felony counts. A conspiracy to commit a felony is a felony in this jurisdiction. S. v. Abernethy, supra; S. v. Dale, supra; S. v. Ritter,
The rulings of his Honor on the motions for judgment as of nonsuit will be upheld.
The record contains 333 assignments of error to the admission of evidence. We shall not undertake to discuss them at any great length. Most of them are so clearly without merit it is difficult to understand
The defendant excepts to the admission of testimony by W. R. Boyles, to the effect that after Davenport was arrested he sent him to employ Mr. Jesse Jones, an Attorney at Law of Kinston, N. C., to represent him. The witness testified he informed Mr. Jones that Davenport was going to “open more stores to get money to pay off down yonder.” The proffered employment was declined.
Mr. Jones was called as a witness and his testimony was offered only in corroboration of Boyles’ testimony. Mr. Jones testified that Boyles told him Davenport was going to open stores in Wilson and Smithfield to get money to pay off the people he owed in New Bern and Kinston. Whereupon he inquired how Davenport was going to get the money to pay the people in Smithfield and Wilson. Boyles said “he did not know.” Then he said “he was to get the money on the representation that he was going to loan it out.” The witness testified that he told Boyles, “Under your own statement, if that is what he is going to do he would be guilty of obtaining money under false pretenses.” This evidence is attacked on two grounds: (1) That it was a privileged communication arising out of the relationship of attorney and client; and (2) That it was an expert opinion to the effect that Davenport was guilty of conspiracy to defraud by false pretense and invaded the province of the jury.
The rule governing communications between attorney and client is stated in Stansbury on Evidence, Sec. 2, p. 108, et seq., the pertinent parts of which read as follows: “The relation of an attorney and client must have existed at the time of the disclosure. Thus there is no privilege when the relation had not begun, or the attorney had refused employment, or the relation had terminated. . . . Although the attorney need not have been consulted with a view to actual litigation, the communication must have been made in the course of seeking legal advice for a proper purpose; hence, no privilege exists where advice is sought in aid of a contemplated violation of law,” citing S. v. Smith,
The relationship of attorney and client did not exist between the witness and Davenport at the time the conference took place. Consequently, the first ground of objection cannot be sustained.
The second ground upon which the defendant challenges the admissibility of the evidence is likewise untenable, since the court excluded that portion of the evidence as to Davenport which constituted an opinion based on the statement made to Mr. Jones by Boyles.
On motion of counsel for Davenport, such confessions were ordered stricken from the record and the jury was instructed not to consider any statements made in the absence of the defendant, Davenport, by the defendants Whorton, Boyles, Powers, Heath, Hunning, or any other person out of court and prior to the time the witnesses were examined and testified in the trial of this cause. The court having ruled with the defendant on his motion to pursue this course, he cannot now complain.
There are exceptions to practically every word of the evidence which tends to show the manner in which the Davenport System was conducted, the advertisements carried in the papers, the books and records introduced in evidence, or as to the statements made by Davenport, his managers and employees to depositors as an inducement to get them to deposit their money.
The acts and declarations of each conspirator are admissible against every other member of the conspiracy. S. v. Whiteside, supra; S. v. Ritter, supra (
We have carefully examined all the exceptions to the admission of evidence, and they present no prejudicial error.
Exceptions are taken to certain remarks made by the trial judge during the course of the trial below.
We find nothing in the remarks of his Honor made in the course of the trial below, that lends support to the contentions of the defendant. The remarks were no more than were necessary and proper in a trial of this length. The court merely suggested from time to time that witnesses had already testified to certain matters and it was unnecessary for them to go over their testimony again and again. The remarks complained of were clearly made by the court in an effort to expedite the trial. But no one can read this record without being impressed with the fairness and patience of his Honor in the trial of this case.
We have thirty-eight assignments of error challenging the correctness of the charge of the court. A detailed consideration of them would serve no useful purpose. Exceptions are taken to the statement of contentions. An exception is taken to the preponderance of space and time given to the State’s contentions, in comparison to that given the contentions of the defendant. Exception is also taken to the court’s statement
The record shows that the trial judge inquired of counsel for the defendant and of the solicitor, at the close of his statement of the evidence, as to whether or not he should state the evidence more fully than he had already done. Counsel for the State and for the defendant assured his Honor it was not their desire for him to recapitulate the evidence further. Moreover, counsel for defendant requested the court to give a number of additional contentions for the defendant, which were given as requested.
The charge is in substantial accord with our decisions on the questions presented by the exceptions, and is free from prejudicial error.
It has been a laborious and tedious task to review the record on this appeal, which contains 440 assignments of error and over 1,700 exceptions. "We have carefully considered all the assignments of error brought forward and argued in the defendant’s brief, but we have of necessity discussed only those questions raised by the exceptions that we felt warranted discussion.
The manner in which the able solicitor performed his duties in the preparation and trial of this case, is highly commendable. The excellent judge who presided at the trial below, which lasted for five weeks, was careful and painstaking in the discharge of his duties; and the record supports the conclusion that no prejudicial error was committed in the trial below.
No error.
