State v. Smith
221 N.C. 400
N.C.
1942
Check Treatment
Stacy, O. J.

Tbe record contains 116 assignments of error based on 125 exceptions. Obviously they cannot be treated separately in an opinion without extending it to a “burdensome and intolerable length.” S. v. Lea, 203 N. C., 13, 164 S. E., 737. However, none has been overlooked; all have been duly examined and considered. Tbe principal reasons inducing our conclusions on tbe main exceptions follow:

I. Tbe defendants challenge tbe sufficiency of tbe evidence to warrant a conviction on tbe indictment charging a conspiracy to burn tbe property as described, it appearing from tbe confessions, offered by tbe State, tbat tbe antecedent arrangement among tbe defendants was 'to “go out *405and stop tbe truck,” not to burn it. S. v. Trammell, 24 N. C., 379. Tbis, they say, is binding on the prosecution, S. v. Cohoon, 206 N. C., 388, 174 S. E., 91, and constitutes a fatal variance between the indictment and the proof, or a total failure of proof. S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Gibson, 169 N. C., 318, 85 S. E., 7; 11 Am. Jur., 567.

There are two answers to the position.

In the first place, authority may be found for the holding that where there is a conspiracy to engage in an unlawful enterprise, e.g., the forcible stopping of a truck on the highway, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any of the conspirators in the accomplishment of the purpose in which they are all engaged at the time. S. v. McCahill, 72 Iowa, 111; S. v. Powell, 168 N. C., 134, 83 S. E., 310. If many engage in an unlawful conspiracy, to be executed in a given manner, and some of them execute it in another manner, yet their act, though different in the manner, is the act of all who conspired. S. v. Bell, 205 N. C., 225, 171 S. E., 50; 1 Bishop on Crim. Law (9 Ed.), 465.

And the liability also extends to acts not intended or contemplated as a part of the original design, but which are a natural or probable consequence of the unlawful combination or undertaking. S. v. Williams, 216 N. C., 446, 5 S. E. (2d), 314; S. v. Beal, 199 N. C., p. 294, 154 S. E., 604; 1 Brill’s Cyclopedia Crim. Law, 464. The general rule is, that if a number of persons combine or conspire to commit a crime, or to engage in an unlawful enterprise, each is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts are not intended or contemplated as a part of the original design. S. v. Williams, supra; S. v. Powell, supra; S. v. Lea, supra; S. v. Stewart, 189 N. C., 340, 127 S. E., 260. In the McCahill case, supra, it was held that where a large number of persons combined to drive employees from premises, and in carrying out the conspiracy, one committed a murder, the rest, who did not intend it, were also guilty. And in the Bell case, supra, where six persons were charged with conspiracy to burglarize a house, and a murder was committed by one of the conspirators in the attempted perpetration of the burglary, it was said that each and all of the conspirators were properly tried for the murder, albeit one of the defendants remained a distance from the scene of the crime.

Secondly, it appears from the charge of the court that the jury was required to find the conspiracy as laid in the indictment before a verdict of guilty could be rendered against the defendants, as witness the following : “The burden is on the State, under this bill of indictment, to satisfy *406you gentlemen beyond a reasonable doubt that they conspired, that is, entered into a conspiracy to do what — an unlawful act, yes, to do an unlawful act, but you want to find, gentlemen, more than to do an unlawful act. You want to find that they conspired to burn the property.” By this, the court intended to say, and did say, the State was required to prove the conspiracy as laid in the indictment. 15 C. J. S., 1137.

It is true, the defendants complain at the language, “you want to find,” as an expression of opinion in violation of C. S., 564, but its significance, we apprehend, was to place upon the State the burden of proving the conspiracy as charged, and no more. There was evidence, outside of the confessions, to support the inference of a conspiracy as laid in the bill. This distinguishes it from the Cohoon case, supra.

II. The defendant Gunter insists that as the confessions were not admitted in evidence against him, his motion for judgment of nonsuit should be allowed under C. S., 4643. There is ample evidence to connect the defendant Gunter with the conspiracy. He had talked with Bristol Ayers on several occasions about the strike. He was at the Truckers’ Terminal Avith his car on the evening of 21 June. Keyser and Smith were likewise there. Gunter’s ear was serviced with gas, and Keyser paid the bill. He had also borrowed a pistol from E. R. Caldwell some time prior thereto. Smith went from the Terminal to the scene of the holdup at the instance of Keyser, and the jury has concluded that Gunter was there under the same arrangement. The record supports the conclusion. On demurrer to the evidence, the court’s inquiry is directed to its sufficiency to carry the case to the jury or to support a verdict, and not to its weight or to the credibility of the witnesses. S. v. Rountree, 181 N. C., 535, 106 S. E., 669. The jury alone are the triers of the facts. S. v. Anderson, 208 N. C., 771, 182 S. E., 643. We are not permitted to weigh the evidence here. S. v. Fain, 106 N. C., 760, 11 S. E., 593.

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. S. v. Williams, 216 N. C., 446, 5 S. E. (2d), 314. The acts and declarations of each conspirator, done or uttered in furtherance of the common, illegal design, are admissible in evidence against all. S. v. Ritter, 197 N. C., 113, 147 S. E., 733. “Everyone 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; S. v. Anderson, 208 N. C., 771, 182 S. E., 643.

*407III. Tbe defendants, Bull, Lipscomb and Kessler, challenge tbe voluntariness of tbe Bull confession and its approval by Lipscomb and Kessler. Tbe matter was tbe subject of inquiry before tbe court in tbe absence of tbe jury. Tbe court found, upon competent evidence, tbat tbe statement, and its approval, bad been made freely and voluntarily. It was thereupon admitted in evidence against tbe named defendants.

Speaking to tbe subject in S. v. Moore, 210 N. C., 686, 188 S. E., 421, it was said: “In this jurisdiction, tbe competency of a confession is a preliminary question for tbe trial court, S. v. Andrew, 61 N. C., 205, to be determined in tbe manner pointed out in S. v. Whitener, 191 N. C., 659, 132 S. E., 603. Tbe court’s ruling thereon will not be disturbed, if supported by any competent evidence. S. v. Stefanoff, 206 N. C., 443, 174 S. E., 411; S. v. Christy, 170 N. C., 772, 87 S. E., 499; S. v. Page, 127 N. C., 512, 37 S. E., 66; S. v. Gosnell, 208 N. C., 401, 181 S. E., 323.”

IY. In reciting Gunter’s contentions to tbe jury, particularly in respect of tbe pistol, tbe court used tbe following language: “He said it bad a rusty place on it at tbe handle and tbe witness from Richmond County testified tbat Gunter got a pistol from him with a rusty place. He admits tbat would be a little suspicious, but be testified tbe witness from Richmond County said be let him have a pistol with a rusty place and tbe witness said be believed that was tbe pistol.”

This excerpt forms tbe basis of one of defendant’s exceptive assignments of error, and, standing alone, it may be subject to some criticism. It is to be noted, however, tbe court was stating tbe contentions of tbe defendant. Attention bad previously been called to tbe evidence tbat Gunter bad tbe pistol “at bis bouse, not at tbe burning,” and immediately tbe court continued, “tbat no one testified tbat was tbe pistol tbe truck driver saw, and be says tbat is tbe. only evidence against him, and be says tbat ought not to satisfy you beyond a reasonable doubt,” etc. Taken in its setting, and tbe fact tbat tbe inaccuracy was not called to tbe court’s attention, it would seem tbat it could hardly be held for reversible error. S. v. Sinodis, 189 N. C., 565, 127 S. E., 601. An error in stating tbe contentions of a party should be called to tbe court’s attention in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence. S. v. Whitehurst, 202 N. C., 631, 163 S. E., 683; S. v. Johnson, 193 N. C., 701, 138 S. E., 19; S. v. Barnhill, 186 N. C., 446, 119 S. E., 894; S. v. Baldwin, 184 N. C., 789, 114 S. E., 837.

Tbe defendants also point to tbe following instruction as erroneously stating tbe quantum of proof: “Now, gentlemen, tbe burden is on the State to satisfy you gentlemen tbat there was a conspiracy.” Tbe complaint directed against this instruction is tbat the “burden of satisfac*408ticca” falls short of “beyond a reasonable doubt,” the degree or intensity of proof required in a criminal prosecution. S. v. Schoolfield, 184 N. C., 721, 114 S. E., 466; Williams v. B. & L. Asso., 207 N. C., 362, 177 S. E., 176; Speas v. Bank, 188 N. C., 524, 125 S. E., 398. It is true that in criminal cases, upon a plea of traverse, proof of the guilt of the accused is required to be “beyond a reasonable doubt.” S. v. Singleton, 183 N. C., 738, 110 S. E., 846. And if the court had said no more on the subject than is contained in this instruction, quite a serious question would have been presented. But as already noted, in paragraph I above, the degree of proof required of the State to establish the conspiracy was correctly stated as “beyond a reasonable doubt.” The rule is, that exceptions to isolated portions of the charge will not be sustained, when considered contextually or as a whole, the charge correctly states the law. S. v. Williams, 219 N. C., 365, 13 S. E. (2d), 617; S. v. Elmore, 212 N. C., 531, 193 S. E., 713; S. v. Walker, 193 N. C., 489, 137 S. E., 429. “An exception of this sort must be considered in connection with the entire charge and is not to be determined by detaching clauses from their appropriate setting”—Adams, J., in S. v. Ellis, 203 N. C., 836. The charge is to be considered contextually. S. v. Lee, 192 N. C., 225, 134 S. E., 458.

There are other exceptions to the charge, all of which may easily be resolved in favor of upholding the trial by the same formula of contextual consideration. This is the rule universally observed and followed in determining exceptions to the charge. S. v. Johnson, 219 N. C., 757, 14 S. E. (2d), 792. A detailed examination of these exceptions would only result in the restatement of familiar principles. They are not sustained.

Y. We conclude that no reversible error has been shown in respect of the trial of any of the defendants on the bill charging a conspiracy. Hence, it is unnecessary to consider the exceptions addressed to the trial on the other bills as the judgments are the same on all the bills and they are made to run concurrently. S. v. Beal, supra. It may be added, however, that the exceptions have been considered seriatim, and none has been found of sufficient merit to warrant a disturbance of the result as to any of the defendants on any of the indictments. Indeed, the exceptions to the trial on the bills charging the actual burning and armed robbery are less meritorious than those above considered in respect of the charge of conspiracy.

It is observed that the prosecution involves no rights arising out of the relationship of employer and employee. Indeed, whether such relationship exists is not pertinent to the inquiry. The record reveals a plain case of armed robbery and willful destruction of property as the result of an unlawful conspiracy. A jury of the vicinage has found, upon *409competent evidence, that the defendants herein are the guilty parties. They have no just grounds to complain at the conduct of the trial. They duly made their appeals to the jury and lost. The verdicts and judgments will be upheld.

No error.