State v. LocklearState v. Locklear
- Reporters:
- , ,
- Before:
- Hedrick
Défendant contends the trial court erred in denying his motions for judgment as of nonsuit as to the charge оf conspiracy to break or enter with the intent to commit larceny.
At the trial, the State оffered the testimony of Melvin Watts who stated that on about 30 July 1973 he and a man by the name of Lewis Lоwery discussed breaking into a service station located in Robeson County owned by Grover Strickland for the purpose of stealing cigarettes. Later that day, Watts talked with Carl Odis Lowery, Richard Lowery, and John Jones, and they agreed to participate in the theft of the cigаrettes. The next morning the four men went to Lewis Lowery’s house to further discuss the break-in. The defendаnt was with Lewis Lowery when they arrived. Lewis Lowery told them that he would sell each carton of сigarettes for $1.50 and that the proceeds would be split five ways. The defendant told Watts that “hе had a key for a bathroom for some station that they could deliver the cigarettes tо.” That night Watts, Richard Lowery, Carl Odis Lowery and John Jones entered Strickland’s service station and, аmong other things, removed eighteen cases of cigarettes. Immediately thereafter, they met the defendant and Lewis Lowery at a designated location “called Five Lakes”. Defendant and Lewis Lowery loaded seven cases of the cigarettes into the back of Lowery’s pickup truck and carried them “into Pembroke somewhere.” They returned about аn hour later and carried away the remainder of the cigarettes. The next day the defеndant and Lewis Lowery met the other four men, told them that they were only able to receive $1.25 per carton and paid them $135.00 each. .
*28Richard Lowery testified for the State that when he, Melvin Watts, Carl Odis Lowery, and John Jones went to Lewis Lowery’s house prior to the break-in, the defendant told them he had a key to a bathroom where the cigarettes could be stored аnd that he would give them $1.50 for each carton they stole.
Grover Strickland testified that his. place .of business, a filling station and grocery store, was broken into on the night of 31 July 1973 and that 710 cartons оf cigarettes, having a value of approximately $1,600.00, were taken;
A criminal conspiracy is the unlawful concurrence of two or more persons in a scheme or agreеment to do an unlawful act or to do a lawful act unlawfully. State v. Mason, 24 N.C. App. 568, 211 S.E. 2d 501 (1975) ; State v. Miller, 15 N.C. App. 610, 190 S.E. 2d 722 (1972). “Direct proof of the charge 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.” State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933). The fact that the defendant did not рersonally participate in the overt act is not material if it is established by compеtent evidence that he entered into an unlawful confederation for the criminal purpose alleged. State v. Andrews, 216 N.C. 574, 6 S.E. 2d 35 (1939).
In view of the aforementioned legal principles, we are of thе opinion that when the evidence is considered in the light most favorable to the State it wаs clearly sufficient to require submission of the conspiracy charge to the jury and to supрort the verdict.
Defendant next contends that it was error for the court to consolidatе for trial his cases with the cases against Carl Odis Lowery, John Jones and Lewis Lowery. The recоrd discloses that Carl Odis Lowery, John Jones, Lewis Lowery, Richard Lowery, Melvin Watts and the defendant wеre charged in a single bill of indictment with conspiracy to break or enter Strickland’s servicе station with the intent to commit larceny; that Carl Odis Lowery and John Jones were charged in separate bills of indictment with breaking or entering with the intent to commit larceny and larceny; and thаt the defendant and Lewis Lowery were charged in a single bill of indictment with receiving stolen goods having a value of $1,400.00. All charges except *29those against Melvin Watts and Richard Lowery, who testified for the State, were consolidated for trial.
It is well-settled that the question of consolidation is a matter to be resolved in the sound discretion of the trial judge. G.S. 15-152; State v. Wright, 270 N.C. 158, 153 S.E. 2d 883 (1967) ; State v. Arney, 23 N.C. App. 349, 208 S.E. 2d 899 (1974). Here, the offenses charged all related and grew out of the conspiracy to break and enter Stricklаnd’s service station and grocery store on the night of 31 July 1973 and are so connected in time, рlace, and circumstances as to constitute one continuous episode. In faсt, the defendant was indicted in a single bill of indictment with the three other defendants on the conspiracy charge and both he and Lewis Lowery were charged in the same bill of indictment with receiving stolen goods. We are of the opinion and so hold that the trial court did not abuse its discretion in consolidating defendant’s trial with the trial of the other defendants.
Defendant had a fair trial free from prejudical error.
No error.
Judges Britt and Martin concur.