State v. . TrammellState v. . Trammell
STATE OF NORTH CAROLINA, ) Superior Court of Law,) ss. MACON COUNTY. ) Spring Term, 1837.
The jurors for the State, upon their oath present, that Jacob B. Trammell, entry taker of the said county of Macon, Jonathan Phillips, William Roane, Bynum W. Bell, John Strain, Benjamin Trammell, (380) Bartlett Wilson, Young Ammons, and Thomas Ray, all of the county aforesaid, being evil disposed persons, and wickedly devising and intending to cheat and defraud all the good citizens of the State of divers large sums of money, and of their locations and of their entries of vacant and unsurveyed lands lying and being in the said county, which lands were, by law, subject to be entered by any of the good citizens, on 2 May, in the year of our Lord 1836, with force and arms in the county of Macon aforesaid, did, amongst themselves, combine, conspire, confederate, and agree together to cheat and defraud the said good citizens of divers large sums of money and of their respective entries of the said vacant and unsurveyed lands, and unlawfully, unjustly, and corruptly to secure and appropriate the same to their own use. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Jacob B. Trammell and [the others, naming them,] on the day and year aforesaid, in the county aforesaid, in further pursuance of the said conspiracy, combination, confederacy, and agreement, did proceed to a certain room in the courthouse, in the town of Franklin, and did then and there enter divers tracts and parcels of land embracing 50,000 acres and more of the most valuable lands in the county of Macon aforesaid, in their own names and for their own use before the said entry taker‘s office was opened for the reception of entries of vacant and unsurveyed lands from the said good citizens of the State and to the fair and equal competition of the good citizens who should desire to make entries therein, it being about the hour of 1 o‘clock, a. m., of the day and year aforesaid, and of the day upon which the said entry taker‘s office was by law required to be opened. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Jacob B. Trammell, entry taker as
Before the trial a nolle prosequi was entered as to Young Ammons and Bartlett Wilson. On the trial it was proven that Jacob B. Trammell, the entry taker of Macon County, with five clerks, to wit, Jonathan Phillips and others, on 2 May, 1836, were in the entry taker‘s office in the town of Franklin after the hour of midnight; that they made a number of entries before the office was opened for the entries of other citizens, then assembled in great numbers about the said office; that when the window was opened and the entry taker declared himself ready to receive entries and money, one Sedford was the first to hand in his entry at the window, and that his entry, when enrolled in the entry taker‘s books, was number 234. It also appeared that the preceding entries on the book were in the names of Phillips and the others in the room, and of some forty persons besides; that several hundred entries were thrust in at the window in parcels with great rapidity and in great confusion, after Sedford‘s, and that they, in many instances, were for the same lands as those of Phillips and others in the room. There was also (384) evidence tending to show that Trammell and Phillips had combined to secure for him, Phillips, and some of their friends, the entries of several parcels of land before the office was announced by the said Trammell to be open for the reception of the entries of the citizens generally, by which a priority was obtained as to the date and number of the entries as placed in the entry taker‘s book. It was in evidence that there was a dense crows of some four or five hundred persons assembled about the office of the entry taker before and after the hour of 12 o‘clock at night on 2 May, and that they continued there till after the office was opened. There was also evidence showing that the defendant Trammell had advertised 8 o‘clock of the said day as the hour at which the office was to be opened; that he alleged the advertisement had been torn down, and he should give himself no further trouble about it; and there was also evidence to show that there was a diversity of opinion as to the hour at which the office would be opened. There was no evidence to show any combination between the defendants to obtain money from any person, or to defraud any individual of his own land. The proof was directed entirely to establish a combination and conspiracy to secure to themselves the entries of the vacant lands, in exclusion of the rights of others, and thereby gain a preference in time. The defendants’ counsel insisted that the evidence in the case only tended to show (if anything) a combination of the defendants to get the first entries of the vacant lands in Macon County, and obtain a preference over other citizens in entering the same, and that such combination would not constitute a conspiracy, however improper it might be; and, in the second place, it was insisted that even if such a combination did amount to a conspiracy, yet the proof did not support the indictment, by reason of its variance from the charge.
The court charged the jury that to constitute a conspiracy, subjecting the parties to an indictment, it must appear that two or more persons combined together to effect some unlawful purpose; that in this case, if the jury believed from the evidence that the defendants or any two of them entered into a combination to make entries in the entry taker‘s office before it was opened, or before it was declared to be opened or after it was opened, for the purpose of gaining a preference and appropriating the land to their own use, and thereby excluding the other citizens, that, in law, amounted to a conspiracy, and it was sufficiently averred in the indictment. The jury returned a verdict of guilty as to Trammell and Phillips, and judgment having been given accordingly, the said defendants appealed. The case, stated by his Honor to have been made out by the testimony, certainly exhibits a course of proceeding on the part of the defendants exceedingly unfair and greatly to their discredit. But whether this conduct, on an indictment properly framed, would or would not subject them to the penalties of a conspiracy, we need not inquire, for we are clearly of opinion that it did not support any of the charges contained in this indictment. It is of the first importance in the administration of criminal justice that the proofs should correspond with the allegations, and for that reason, among others, the allegations are required to be distinct and explicit. It is not easy to understand those set forth in this indictment, but by no reasonable intendment can we so construe them as to accommodate the case made to the charges preferred. The case made is of a scheme contrived between the defendants (386) and others whereby to procure the first entries of vacant land in the entry taker‘s office, so as to secure to themselves a priority over entries that might be afterwards made in that office by others; and it is expressly stated that it was no part of this scheme to obtain money from any person, or to defraud any person of his land. Now, what is the conspiracy charged? In the first count, it is to cheat and defraud all the
We hold, therefore, that his Honor erred in instructing the jury that if they believed from the evidence that the defendants entered into a combination to make entries in the office before it was opened, or before it was declared to be opened, or after it was opened, for the purpose of appropriating the lands to their own use, and excluding others, they were guilty of the conspiracy charged in the indictment.
The Superior Court will set aside the verdict, and, if the State chooses to proceed further in the case, order a venire de novo.
PER CURIAM. Reversed.
Cited: S. v. Van Pelt, 136 N.C. 639.
(388)