*1 TERM, 1959. N. C.] Waxkek. PEGRAM, WALKER, ED ROBERT CALVIN RAY STATE v. WARREN MARTIN, ABBOTT, JARRELL, JOHNNIE BOYD MALCOLM WARD PAYTON, AUSLANDER. GORE CHARLES LAWRENCE E. January, 1960) (Filed 14 1.Conspiracy 6—§ tending prove guilt conspiracy, -prosecution to a the In fairly logical legitimate a de- of as of duction, two the defendants suspicion conjecture than -a mere or and which raises more guilt, precludes nonsuit as to such defendants. of their Conspiracy 2. 3—§ -persons -agreement conspiracy or to an is an between two more do A thing way ¡thing by an un- do unlawful -unlawful or -to a lawful means, -agreement the itself offense lawful and since is the accomplished. object agreement -necessary should be 'that conspiracy Conspiracy guilt to 6— Evidence bold sufficient 3. § nonsuit. overrule tending had representative local to show that strikes been called Evidence mills, specified staff the of the national two that a unions union -plan -originated a to and discussed with -State’s witness bomb stop operations at the room of one of the milis order boiler bombing mill, sites, plan enlarged to of two other later cover 'the which meetings personal were ha-d of de- certain thereafter -plan, formulating three of defendants ar- -that fendants agreed upon prior going place .to to con- as -rendezvous rested at together conspiracy, with admissions made two of summate meetings tape -recording played been a of one 'had after them incriminating circumstances, is held them, with other -facts prose- as of such defendants nonsuit to each to overrule sufficient conspiracy. cution for knowledge conspiracy had one defendants Evidence Same— message agreed in furtherance of com- deliver another design guilt. as to his held sufficient mon -among bomb certain of certain Where during established, stop -operations at a mill a strike is properties to -phoned witness one of the con- evidence -that the 'State’s the State’s explanation why spirators other of the con- at his hotel for certain agreed, person spirators him as who an- meet failed conspirator called, person phone was but that such swered the identified himself, official, person superior was a union such recognized by conspirators, whose State’s one voice of witness, person’s knew of con- conversation indicated he that such -avoiding any necessity spiracy connection -the union there- and the conspirator get with, promised who had been in -touch with but incriminating circumstances, together sufficient, called, with other held person’s guilt co-conspirator. jury as a such be submitted .to 67— Law § 5. Criminal n telephone was made to 'the room of one conversation Evidence IN THE SUPREME COURT.
'State v. Waekek. *2 n person:, superior person phone .that the of such answered the and identi- himself, together testimony person making fied call with the the recognized person thiat us the voice that of who identi- the himself, question identity fied is sufficient to of of take the the the anti- speaker jury. phonal to the 3,6: Conspiracy 6. 7— Criminal Law § §§ agent pretended acting Tlhe mere that an of fact the law to be in conjunction conspiracy with several others a criminal does ab- not though responsibility, solve such others criminal since even the agent join conspiracy, illegal agreement did the law in the the any between others would two constitute the offense. 7. Law Criminal 15—§ prosecution conspiracy properly brought county A for is conspiracy which the was tó be consummated where several conspirators had come to consummate .and had it been arrested. 8. Indictment and. AVarrant 4—§ grand jury Defendants are not entitled to examine members of the support finding their contention a true bill was based solely incompetent on evidence one two bills was not given based on evidence in connection therewith. 9. Criminal Law 164—§ Where the on sentences each three indictments are concurrent and defendant,
identical as to each error would have to to all relate three prejudicial. in order to indictments be 10. Indictment and Warrant 14—§ quash Motion to after the introduction of the evidence not made apt time. 11. Criminal Law 84— §§ credibility Where the motives and of a State’s witness have been at- competent upon repelling on tacked cross-examination for such it witness re- explain purpose examination to his direct the motives for the credibility. attack 12. Criminal Law 97—§ persons appears 'present it Where .that than were other defendants testimony to in at time referred the State’s witness and have could contradicted the .State’s witness if the facts related untrue, prosecution may argue jury no one had witness, argument in contradiction of .State’s testified such will improper upon testify. held as a comment not be defendant’s failure to Law 30— 13. § Constitutional Every person crime is entitled to fair and im- a. partial trial. Conspiracy Law 34—§ 5: Criminal § prosecution pro- to bomb a mill and for In transformers TERM, 1959. N. C.] v. Walker. stop operation operations viding power in order of the mili during strike, of statements made the mill knowledge regard as to would have which transformer their power competent destroyed interrupt mill is their to show ability accomplish purpose conspiracy, asserted skill and testimony may implicate tend to the defendants and the fact such ground for in other offenses is not its exclusion. Law 15. Criminal 162—§ prej- competent has there no evidence been excluded can be Where arising jury from the fact that was heard before udicial error it, jury court them to consider or that after instructed transcript had returned of such into the courtroom again upon request read them of the solicitor. — *3 Law 16. Criminal § 67% Incriminating by tape conversations between defendants recorded renting placed person of and recorder in a room with the consent competent. occupying the room are of not Law Action solicitor held amount Criminal 96— .17. § taking advantage of of unfair defendants. tape recording inducing is material the case confes- Where defendants, offering of the solicitor in sions certain of act recordings in 'the evidence with the statement effect that some might competent they the matters therein contained were offered for corroboration not be but and for witnesses the de- use desired, prejudicial! ground if will fendants so be held on the thereby advantage undertook the solicitor to take unfair of de- prior when fendants occurrences had indicated did desire defendants validity recordings nothing to attack the and there is impugn motives of solicitor. record to Higgius, J., part took in the consideration or decision no of this case. J., dissenting part. in Bobbitt,
Appeal July 13, Mallard, J., Special defendants from 1959 Term, of YaNCe. Criminal in three charged, indictment, bills with a con-
Defendants were injure high explosives by dynamite properties other spiracy to conspiracy 'charged dynamite in bill 3508 County. The was to Vance machinery other including -room the boiler and of Hen- the boiler conspiracy alleged dyna- In 3509 the was to Mills. bill Cotton derson 'building Mills, of Harriet Cotton bill main office mite the dynamite substation, trans- 3510 Light lines of Rower Com- switches, power Carolina former, guilty -for were consolidated Verdicts cases trial. pany. charge. on each sen- as to each Prison returned defendant were defendant, charge identical as each on each imposed, tences IN THE SUPREME COURT. v. Walkee. but varying a® the different defendants. The three sentences imposed on run concurrently. excepted each defendant Defendants to the judgments and appealed. rendered
Attorney Attorney General Seawell and Assistant General Mc- Galliard the State. for M. Nicholson, W. J. Randleman, Jjedford, James James B. Yarborough
Hill defendants, appellants. RodmaN, J., The record 225 assignments contains Mani- error. festly a seriatim discussion not desirable. Instead we treat principles basic appellants which urge support assignments of their of error. When the rested, severally moved for nonsuit ¡a
which, allowed, if would have the force and judgment effect guilty. They G.S. 15-173. no offered evidence. court over- ruled motions severally and defendants excepted. The correct- rulings ness on the motions so made is first question pre- sented. If when offered, light viewed most favorable
to the State, jury was sufficient for to fairly conclude that guilty, (cid:127)two defendants were the motion as to those defendants was properly 342, overruled. Horner, 694; 248 N.C. Block, 243; S. v. 245 N.C. 97 S.E. 2d Simpson, 244 N.C. If, however, S.E. 2d 425. the evidence amounts to no more *4 (bo suspicion conjecture, than or the motion nonsuit should have been Glenn, allowed. v. 251 S. N.C. 156. charge bills unlawfully,
The
that defendants “did
willfully and
feloniously combine, conspire,
plan together
confederate and
to will
maliciously
fully,
wantonly injure”
and
the property of
A
another.
conspiracy
agreement by
is an
two
persons
or more
to do an un
thing
-to
thing
lawful
or
do a lawful
in an
way
unlawful
or
un
The
of
lawful means.
heart
the agreement.
necessary
object
sought
is not
that tire
the agreement be accom
Hedrick,
904;
Parker,
plished.
727,
v.
72
S.
236 N.C.
S.E. 2d
S. v.
907;
236,
2d
Davenport,
234 N.C.
66 S.E.
227
475,
N.C.
42 S.E.
Andrews,
686;
574,
35;
2d
v.
216 N.C.
6 S.E. 2d
v. Lippard,
S.
S.
223
167,
594;
Anderson,
v.
N.C.
25 S.E.
182
643;
N.C.
S.
Whiteside,
(cid:127)the of defendants guilt fined to of witness Aaron. Evidence of of' de- appears Walker, Abbott, Pegram, and Jarrell in testi- fendants mony by agents related of the witness Aaron and confessions I. S. B. by Aaron, can development conspiracy, related best Leaksville, chronologically.
be treated is a resident of N. C. Aaron Auslander, He knows in a hotel in Reidsville but works who lives I Spray. May, 1959, in saw “During He testified: the month an Workers Auslander five or six Pie has office times. Textile manager he is 'the Spray. of America Hall in I think Union Union nine, years. . I been, recall, eight, I ten . the Local and has best n hadan occasion during May, him the month of before see pursuant May, Hall, in his at tire about 21st office Union somebody. and got some I I went to>the Union Hall talk- word from . . the strike in during day. ed to him discussed situation We affecting strike was all Henderson, and said that the Henderson in said if the won of the unions the South and strike was not against the South. Henderson, it would be all unions -the put going Henderson to possibility “We discussed first it. wanted to operation. mill Auslander mentioned Pie out room and go if I would to Henderson and bomb boiler know it, him do would operation of mill. . .1 told I would bomb stop . except him. room, nobody present else me and We the boiler I power mill and supplied with discussed the substation get I . . me if could I knew where was. .He asked toldi somebody help I I thought me. I told him could. get somebody I understanding
“I left would else with McBryde Draper with brought . .1 C. me meet him. . E. was in his bombing. That with him about the conversation talk (Present Auslander, time were Dave daytime. office Aaron). assistant, McBryde, . .Then talk- Harris, Auslander’s we bombing through of the boiler room and the going ed just mills Henderson. That about the cotton substation that feeds that time. . . conversation at . care of the taken again at 'his office that afternoon “I saw Auslander . him. . conversation go Henderson look situation me
“Auslander told *5 expenses go down to Henderson and $10.00 me gave over. Pie in and the substation. That cash.” room over the boiler look Highway a member the State Patrol witness contacted with Auslander. The patrolman his conversation informed Bureau In- in touch with member Aaron patrolman put IN THE COURT. SUPREME v. Waxkee. vestigation. He related bis conversation with Pursuant Auislander. understanding an he with members of the B. I. that would keep them informed transpired, of what went to Henderson. He he “I came to on I testified: Henderson the 2nd of June. . . .When ar- Henderson, rived in I called Johnnie Martin from a service station him daytime ... .1 ©aw at his . I saw him. . . . 'home. . was when .It IWhen reached Martin’s I home, knocked on the door and he came and I door told him Auislander me down there had sent
... I got .1 said that was him went and sent and we contact we oar and discussed I came .to see . . .1 told him I w'hy him. to bomb power sent boiler room and station 'and that he help would me him and I told of another .1 showed name. . . out him paper I gave paper had. . . Auslander me in -his .Mr. office at the last him. . meeting with . .He that be talked to said boyis these in Henderson and said that did not think that Martin he actually would help do the hut said bombing, would me out he .any way other talking that he could. . .When I was . Martin he why this occasion asked me first I had not when I was come supposed He Iwhy to. asked me did not I supposed come when was previous. to the week . . .Martin said that would be the one to he go between me get and Walker if we had to in touch with each other. went to saw Warren Walker’s home and Walker. . . . Then.I 'bombing get We talked of the boiler room, how to into . . . -it. I I told was down room Walker there bomb the boiler and asked help him would he me. him boy He ©aid would. I told I bring going .to with me not come could and I bad have some- body me, and I I help they told him understood that knew all that . . .1 they about it and said did. told him that had to he so got that the would not be involved in caught, Union it. If we we own were on our not have anything would to do with it. . . . talking with length “After Walker at the actual bombing about it, up would do I a meeting and how we sat to meet I him. told w.e would bomb the boiler room Walker and the . . substation. .He going help room, said that he was me bomb the power boiler things. station, and talked all of . 'did we Walker not at that the officeof the time mention Harriet Cotton Mills. . . .1 next talked him the Brookwood Motel on or about the 3rd of June. . . was with him. It was in the nighttime. Lawrence Gore . .Gore asked why supposed me I when I was I explained didn’t come to and why come, I that I didn’t trust I boy him didn’t was bringing I him I bring me could not told that I would by myself. . . . rather come that he thought main building
“Gore said office of *6 TERM, 1959. C.] v. Walkeb. importance be more than the boiler Henderson Mill would South . be . they replaced. records that could not room. had sa-id that He me boys help he to- do actual He would see some that were said . not .” again. and him would meet . bombing and he me said that He County on June. testified: Rockingham Aaron returned to why I me got “I Leak-sviile. He asked Auslander when I saw discussing got building. were rid the main office We had was going that he dynamite he had a -call—he told me made going T am make a call.’ He . . .He said: call South Carolina. ¡some dynamite. that is kind of -saidiabout as to what ‘-bones/ ‘bones/ he I said when made telephone. He on the heard what he made call ¡call. . .1 Spartanburg, South Carolina. placed He call said, ¡to needed, -asked him first He that he beard what he said him. person on -response . . to what the did he have ‘bones’ .I-n hid. boy -said, he had said, line Auslander the'other end -the get the get them, down -and 'bones.” officethere that would -come ¡the B. I. Pursuant this conversation to Aaron communicated went Raleigh. -in He then to them -office request, to their he came bad, This room Rapids. Motel the Brookwoodi -at Roanoke continued: -consent, tape Aaron Aaron’s been wired recorder. . I with -him. . . my t-o -alon-e. talked came room “Warren Walker ¡and 'him I do I that didn’t planning I was told asked me what -he ¡as would have I ‘hones’ far concerned know, that -as was that . get -any in I Leaksville. Henderson, could c-omefrom because and the room, the substation bombing we the boiler talked -about building office with Molotov Cocktails main setting fire mill. South Henderson in a bottle gasoline i-s mixed “A Molotov Cocktail fuel -oil ¡corked against it the outside. When bursts up -with a fuse on and' up. fix He gas. I him them
something ignites -asked could said he could.” ¡an A-aron, lasted about according to the witness meeting, Th-at meeting -at the motel Arrangements were then made hour. following me “He did meet following -night. Aaron continued: ¡and Walker, Pegram, Abbott Motel, Warren night at the Brookwo-od ¡and room, my -my they got presence first myself. . . .When Jarrell Abbott and Jarrell -and to me as Mike them was introduced one of ¡asI was as much -boys said that the Jones said were Pegram boys me these told ever know. . . .Wa-l-ke-r would ¡and Pegram Abbott previously and said me bad told about me about Pegram And asked bomb the transformers. would know, I didn’t but I told him that get of it. he would out price, what p-ay-off would understanding I wa-s come IN THE SUPREME COURT. v. Walker. Leaksville, and be said that bad discussed it with Gore and Gore agreement. bad come to some He did not me tell *7 what was, Pegram they it and that if paid price, said the he could have knocked building long -that office out ago, they but that would pay price for . .1 Pegram it. . told Jarrell that running was his mouth too agreed much and Jarrell with me. . . .Walker said he could referring Pegram, vouch Punch and the other two boys said he they that knew how operated they and said that were boys. good . . .Walker I and said that we would bomb boiler if room we . .Pegram you exactly could. told ‘Ifme, show me where put it, go out,’ it will referring lights. By dyna- ‘it’ was meant He me put dynamite mite. wanted to show him where to under the . . engage transformers. .We talked the best time to in those ac- tivities, me walker, and I operation asked him was mill in — on Saturday Sunday Pegram and hie saidi that said he thought night it would be the 'best to do it. . . .”
Arrangements again were made meet at the Brookwood Motel on 12 June. Walker, Aaron Abbott, testified that and Pegram came Pegram get motel. did out of the car but 'the Walker did Pegram and came to his room. and Abbott left their car. Walk- er remained with the witness. Aaron testified arranged they night would meet on the 13th iat the Freight Motor Terminal in Henderson to the conspiracy. quoted consummate Aaron “ Pegram saying: T my as will brother’s car’ or T will have drive my brother’s He oar.’ said that he would the stuff with him, have talking dynamite. about the Pegram himself said had the dynamite power plant. stuff he would use Walker said 60% get he would say out He did not whose the car. car would up in drive but said he get get would out of the oar and in with .”me. .
Special agents and Highway Patrol, pursuant members of the by Aaron, information were communicated them at Motor Freight night Terminal Henderson on 'the 13th. About 7:50 that 'an night up persons with in it, automobile drove three Walker, Pegram, They Abbott. were arrested and interrogated by tape recordings members of the B. I. The taken at Aaron’s room in the played Brookwood Motel to them. Wit- nessess for the agree- State testified Walker and Abbott admitted the to dynamite ment they related' Aaron but asserted had not go through plan. They Pegram intended to with the testified ad- Rapids going Walker, Abbott, mitted to Rotaoke with and Jarrell ¡another person; Pegram where talked but refused make any further statement. TERM, C.] Walker.
The additional evidence on which to support relies of guilty Boyd Payton may verdict as to defendant be thus sum- representative marized: Auslander is a staff of the Textile Workers of America, Union proposal dynamite AFL-CIO. The the mill properties system originated prevent electric Auslander to 'by the failure members, strike union employees of the Ootton Mill. Aaron, soon after he pursuant agree- went Henderson to his ment with Auslander, was contacted Gore, Lawrence defendant representative a staff of the Textile likewise Workers Union Payton agent having charge America. was the union of the strike at Henderson. Gore was Iris important subordinate.
union plan awry. association should not if be established went was registered Gore during Vance Hotel Henderson early part of June. night on the June there check- He and' *8 ed promised 5 June. the men employed out Gore to in -assist dynamiting would meet Aaron at night his motel room on the of 4 They appear. failed Aaron, June. to when appear, failed to for called at his hotel in person Gore room Henderson. A answered stating Payton that talking. recognized defendant was Aaron Payton’s question voice. This take identity sufficed to to the jury. v. Everette Lumber 250 Co., N.C. 2d 288.
Supporting Aaron’s testimony telephone were company records showing a long distance call for Gore at the Vance Hotel in Hender- The son. call lasted two minutes 25 seconds. It was made at 8:36 p.m. Payton phone answered the in room. Aaron contin- Gore’s Boyd “He Payton, ued: said this is boy and I said this is that from LeakesviHe at Rapids. said, know, Roanoke He I I and told go My him that I broke was and -had to home. wife I thought was go in Richmond I to and had home that week-end. I I told him was upset because Gore -me night supposed to, had met that he was supposed says, say Walker says was He don’t to. too much. He phones going ¡through are said a switchboard. that Law- He rence was out town but he would contact him night that or the thing morning in him get get and to in touch me with and first hung up. he That’s all.” -defendants, dealing specifically
The brief of Sufficiency with the Payton's says of the -as to with guilt, respect quoted Payton juiy conceivably conversation between and Aaron: “The defendant, could infer from this that Payton, knew alleged conspiracy involving about the the other defendants.” With Payton to knowledge promised this Lave see Gore Aaron. following morning Aaron -had breakfast at a restaurant next Rapids.
to bus Roanoke When station at he returned to the THE IN SUPREME COURT.
n State Walker. for him. waiting Walker motel, Lawrence and Warren Gore (there?” testified: then and He said Aaron wias asked: was “What finally got Boyd said had thing said, Mr. Gore first “The Boyd finally got in had touch . .he said that touch with Charlie. got he said had Auslander, Boyd Payton, and ithat with Charlie meeting to we had night previous himself touch Gharlie me home to Auslander wanted to come morning and said said, thought me, he T further. . . .Gore told discuss situation over understanding get we would not touch we an .that I he like the idea that called again,’ each other did not and it, Boyd not like me it said did he not like and hotel. said did He him I called Payton. to I told talking Hotel and calling the Vance I to I did not ask talk him, the hotel to And said talk to Gore. just I explained I Payton we discussed that. and I going Payton did ask did I was talk not know that (Gore) said he free will. . .He Payton, they done it on his own every he needed Greensboro moving Whiteville gave $20.00. $20.00. me give me He penny he had and said could get you home tell Char- said, $20.00,’ says, ‘When He ‘Here’s ” Boyd Boyd give can to me.’ lie send it back to -and Payton, “Boyd E. telephone card issued Payton carried credit Street, America, O., I. Union of C. West 6th Textile Workers pro- representative telephone company Charlotte, C.” A showing charges records the credit duced, pursuant subpoena, telephone charges to card was a call made Among card. ,at his residence Reidsville. call at Henderson to Auslander eight Other p.m. 11:21 4 June lasted minutes. made -at *9 Payton’s May were to credit and June calls to Auslander card. morning of 5 June. He testi- on the returned boLeaksville Aaron got standing He was when I to Leaksville. “I saw Auslander fied: I him up. he saw the waiting I for him when came outside. was wp my up walked over behind car and day and he drove same then, As what he said was talked, to what the we Auslander and me. Payton. I He thing, well, got mad because had called told first by calling getting 'anything, him involved in wrong me him land I was to Payton said I should not have talked him. involved. He getting him to me I did not call talked volun- explained I telephoned Spartanburg time Auslander .” This the tarily. was dynamite. secure Payton’s is, think, participa- -to show we sufficient
The evidence dynamite properties the of the Cotton plan proposed tion in the pro- Company, purpose of conceived Power Mill the TERM, C.] v. Walker. muting Payton's job keeping of the mills operating is and' suf- ficient, by jury if accepted true, % guilt establish the all of of the defendants. argue
Defendants there can be no conviction because of Aaron’s pretended participation. position Their is that the evidence estab- any lishes that Aaron never had agree- intent consummate his with Auslander; agreement ment constitutes the basis on which rest, the conspiracy must and that since there nowas consent to the conspiracy by Aaron, agreement by nullity others awas constituted no crime. support they rely
In their position King of State, 104 S 2d 730. There King the defendant and another 'charged were with hav- ing entered a conspiracy into with a law officer vio- enforcement gambling of late laws They convicted; judgment Florida. originally Petition to affirmed. rehear was filed, andi a divid- ed Court it was held conviction could not be sustained parties where one of the conspiracy lawa enforcement officer who no intent to violate the law. The said: “But Court Muscovitz, in here, circumstances is not criminally liable as a (.citations co-conspirator omitted); nor it seriously can contended government agent prosecuted a can be for a violation of a crim- performance inal duty statute committed in the agent. as such cognizant punishable conspiracy may We are fact that la exist accomplished whether intended to be crime equally But it well committed. settled that where one two persons conspire illegal who do an act an officer acting person discharge duty, of his other cannot be convicted charge conspiracy.” Supreme
If Court of Florida was speaking with reference to conspiracy governmental agent limited to a and one person, other Supreme from tlie facts in this If facts differ case. Court conspiracy among to hold several, Florida intended one of governmental agent, whom was a without intent participate mei’ely seeking respect but information with proposed crim- act, disagree we with the inal conclusion reached. The mere fact pretends conjunction agent acting to be that an law others a criminal does not absolve those in- several guilt. and relieve them We so held in Caldwell, dicted 56, 2d 189. N.C. Supreme Court of not, The cases cited Florida do in our .the support King reached in the
opinion, conclusion case. *10 States, v. 32 F. Mayo United 2d there was charge In De a conspiracy government and as here a agent was, pre- of criminal COURT. IN THE SUPREME v.
(cid:127)State Walkek. charged conspiracy. The indictment be, party a to the tended “It conspiracy. The Court said: de- participants several as together Kennedy, one Kelsey, testimony that veloped in the prohibition of the officers agent representative -acting was as the lan officer and did he was in effect such States; of the United that detecting conspirators and of purpose for the what did urged, ap- therefore, them to trial and -conviction. bringing invalid because of the indictment, if not in fact pellant that Kelsey -support failed of conspirator, -of incorporation officer, co-con- who is -not in fact a government that evidence in -a detecting crime, .simply purpose for the spirator, who acts -but not to them codefendants; imputabl-e his acts- are bis that cannot bind .(I)t community . seern-sclear -that purpose. there not because gov- a Kelsey, though not .parties named, -to first if, in addition defendant, and had de- -officer, included -as .a ernment had been it conspiracy, it could Kel-sey party not to- the a veloped conspiracy -charged would fail on ac- not be claimed that in-competency Kelsey’s it count as to the others. We take existing a result no conspirator the facts effects become a under found follow if he w-ould different from which otherwise agreement.” unlawful party not to- be a conspiracy a States, 51 F. involved v. United O’Brien “That there was a The ’court said: prohibition law-s. violate the law, no doubt. prohibition there can conspiracy to violate be prohibition -agents, the three who conspiracy -was -conceived Lyle, effectually to more accom- de-coy, the services enlisted object perhaps, object. might urged, .It plish . . th-ei-r Never- suspected certain offenders. conspiracy entrap was to accomplished through the viola- entrapment was to theless such -be may have several -conspiracy As a ob- tion -of the Prohibition Act. objects he the violation o-fa fed- that, if one of its jects, if follows statutes.” law, within the condemnation it falls eral (Texas), 2d 91 the bill State, S.W. In Weathered Bradley, Edgar Hammonds with Weathered, Vick as to The count -reviewed enter house. to -break and -a part -conspiracy -and 'his as an participate in B-ra-dley’sintent to evidence, the Court said: Following 'the review informer. Bradley it is obvious that Vick foregoing did “From the burglary or aid the commission. thereof. to commit intend alleged -sincere; -conspiracy -in participation His meeting union or was no minds on Hence, there simulated. parties so -as to constitute Bradley other part acts, conduct, -presence was to deceive coconspirator. His *11 TERM, 1959. 477 C.] v. Wax-kek. alleged coconspirators. and His mislead bis mind not did concur and alleged coconspirators unite with the mindis in a in- criminal alleged tent to offense. . . But -this the would not relieve commit appellant being prosecuted and convicted of offense said testimony provided appellant showed that and Hammonds had 'conspiracy entered into a to commit . .” offense.
Applying given definition heretofore of a conspiracy, this Court has held that one cannot be convicted unless least two are at charged. 260, S. v. 198 N.C. 151 Wrenn, when, S.E. 261. But bo here, as participate several are conspiracy, con though viction be had; can and this is true even some of the al leged conspirators Rogers S., are v. 340 367, U. U.S. 95 unknown. L. 19 2d 344, ed. A.L.R. challenge right put
Defendants next
'to
on
them
trial. The
bills of indictment were
at
plead-
returned
Term.
June
Before
ing
charge
they
bill 3508,
contained in
filed
they
what
de-
plea
By
.they
nominated a
.p,lea
abatement.
this
assert
Vance
(1)
County
(2)
venue,
proper
bill was
solely
based
on
incompetent evidence,
they propose
which fact
to establish
testi-
mony
(3)
grand jury,
members of the
the bill was not based
given
evidence
in connection
therewith. Such
prior bill,
was heard
they propose
related
to establish this
by testimony
fact
grand jury.
from members
The evidence taken
the trial establishes contact between Mar
at
tin and Walker and activities
them in
County.
between
Vance
Walker,
Pegram
also fair to
Abbott,
infer
came to the
Freight
Motor
night
Terminal in Henderson on
13 June to
dynamiting
buildings.
consummate the
Trial was
properly bad in
County,
Warren,
380,
Vance
v.
227
42
S.
N.C.
S.E.
350;
Lea,
2d
13,
S. v.
203 N.C.
The bills show that L. E. D.C. and W. C. Wil .grand jury. son testified before the The at the evidence trial shows these witnesses 'are members of the B. I. Wilson S. and Fentress testi (confessions They Walker, fied Jarrell, trial. related made Pegram, testify and Abbott. Allen did at the trial. court permit refused to defendants to examine members of .grand jury to determine what heard induce .them to return correctly. ruled S. v. Blanton, bill. court 227 N.C. true 663; Levy, 94; 200 N.C. 158 S.E. S. v. Broughton, 640; 96; Ernster, 680; 29 N.C. 179 N.W. S. v. Lewis, 38 La. Ann. holding Am. Jur. 720. The reason for the is aptly expressed by Adams, suggested “The J., Levy, supra: practice in S. v. would hinder (often delay. require the trial and result useless It would the ex- IN THE SUPREME COURT. v. Walker. members witnesses, 'including, perchance,
amination of -a number of judge of the invade grand jury; it would demand petit of a province grand jury or exercise the functions *12 upon passing jury finding 'conflicting evidence and the .facts from Court into credibility witnesses; Superior it would turn grand unseemly a forum for between members of the an contest Besides, jury may with crime. whom have those it will unnecessary; incompetent practice such if the evidence be by excluded trial court.” erroneously relating if had on motion
Even the court ruled tire indictment, ruling to one defendants on bill such could avail .appeal. They and sentenced on three bills. this have been convicted concurrently. The sentences and run Error would have are identical Thomas, 244 N.C. appeal’ .prejudicial. to a®to -all three to be S. v. 763; 78 2d 63; Williamson, 652, 238 N.C. S.E. 212, 93 2d S. v. S.E. 2d 871. Hicks, v. 233 64 S.E. N.C. S. to non- and motions quash
Motions after evidence was Williamson, v. 250 N.C. suit had been overruled too late. S. came 80; Suddreth, 204; 240 N.C. S. N.C. Gales, 610, 27 623. S.E. 2d prejudiced by permitting rights next assert then Defendants why Aaron, examination, explain he'
the witness on redirect had president of the mill and>law enforcement communicated proposal and the witness’s sub- respect officers Auslander’s subj trips rigorous had ected to cross- sequent to Henderson. He been It was evidence that been convicted of examination. portion He was out of work. At least a several criminal acts. by expense Rapid® paid was in Henderson and Roanoke his Enmity part on Aaron’s to Auslander was claimed. These I.B. prompted was support argument that Aaron to testi- facts would 'an mercenary or from fy of his for Auslander motives. because hate testimony of Hie unworthi- render his dubious value. Either would Manifestly us. strongly argued was before was ness of belief explain competent in that situation for Aaron reason for only The evidence was intended communicating with the officers. ' credibility. on the witness’s repel attack defendants’ Stansbury, Evidence, sec. 50 and competent. N. C. 51. by rights prejudiced been improp- their have
Defendants contend prosecuting attorneys. one of the argument made These as- er exceptions taken 'at the trial. Notwith- are not based signments exceptions, we of defendants to take standing this failure consider argument Hooks During the of Mr. defendants asked .assignments. request jury Their permit retire. was allowed. The the court TEEM, C.] v. Walkee. objected record'shows: “The then following state- they say ment Mr. ‘No gone" made Hooks: one has on the testify stand to discredibility, .as to Aaron’s on behalf of the defend- ants, lawyers.’ except the : yon “COURT: Is that made. statement Substantially, yes, said, ‘Nobody
“MR. HOOKS:
sir. I
has testi-
except
lawyers
fied to anything
in this ease contradicting what
”
this witness has said.’
thereupon
Defendants
moved for a
which
De-
mistrial
was denied.
argument
improper
fendants assert
and forbidden
statute,
8-54,
testify.
G.S.
because the
defendants had
elected
They offered no evidence. Defendants’
is not
found-
contention
well
correctly
ed.
interpret
statute,
To
apply
.and
it should
re-
law,
membered that at common
England
both in
and in this coun-
try, parties
competent
were not
permitted
witnesses and were not
testify.
rigorous
begian
England early
Relaxation of this
rule
*13
Queen
of
legis-
administration
Victoria
.so much
when
remedial
adopted.
lation
.shortly
was
North Carolina
thereafter
modified
¡but
law exclusion,
23,
c.
1856-57,
it was not until 1881 when
Laws
.privilege
now accorded to a defendant in -criminal actions to testi-
fy or to
creating
remain
without
a presumption against him
mute
Wilcox,
691,
enacted.
v.
206
S.
N.C.
But the remark to which the .is made'does not ally point to the of the defendants take the failure stand. It does COURT. IN THE SUPREME
n v. Walker. failure. by them because such guilt 'argue any .admission of not Aaron, light in the evidence. viewed aa-gument must be State, sharply cross-examined. had been witness for the principal .argument jury their may the defendants We assume that inception .testified that at the credibility. He had challenged 'his had Auslandor, in whose mind the present: four were Aaron, assistant, Dave Har- Auslander’s originated, crime the witness nor Mc- appears, neither Harris McBryde. far as ris, E. C. So >and conspiracy. Biyde part took If with re- Aaron’s They merely silent observers. false, the whole conspiracy was very inception of the speot to the in this situa improper not for solicitor fall. It was case would say one testified contradiction Aaron. S. tion to that no had 581; Weddington, N.C. Hooker, N.C. reporter the court took remainder request At the of defendants assign portions other argument. Hooks’ Defendants now Mr. objection No. entitling them to new trial. argument as error are, as error when test- portions assigned at the time.
was made no improper and form basis legal principles, ed correct jury that charge its was careful to inform the a mistrial. The court in they would right to elect whether would or the defendants had a testify do so should not considered that their failure to jury prejudice them to their were exercis- against by law. ing right given 133, 116, 37, 51, 152, 35, 36, 96, 97, 98,
By assignments of error they have not a fair and and 121-132 assert every guarantees which the law impartial trial defendant. every say person charged seem needless It would placed Carolina, in the courts of North en is, when trial crime *14 so impartial repeatedly trial. have a fair and We declared. titled to 387; 453, Phillips, 80 S.E. 2d 240 N.C. Grayson, 239 N.C. S. If, and numerous cases there cited. as defendants 516, 82 impartial trial, judgment not had a fair -and contend, have the ought to and would be a imprisonment their vacated and directing new trial ordered. already length most of dealt at defendants' con- We have already Perhaps opinion unduly protracted, the the
tentions. but deprived defendant has been that a fair trial assertion mere purpose pick we assignments For that the which requires discussion. basis for the assertion. The contention is typify the that seem to sought introduce the trial evidence prosecutor of other influencing juay. quite It is purpose true, for the as de- crimes of crime that evidence committed argue, defendant fendants TEEM, C.] v. Waikeb. immaterial totally to the exime with unrelated which he is ¡the and hen.ee not be offered. In applying general should this rule ¡directed court jury excluded not consider evidence evidence which seems us to ¡competent. have 'been The ¡rulings by court prejudicial were not but favorable defendants. course the Of ¡which had no right except rulings to these unnecessarily think we ¡on limited rely. wdxich State was entitled to We .the ¡of pick typical as the assignments upon relied numbers 35, and 51. agent, The B. Wilson, testified 'by I. as to the statements made ¡and Walker the other on night of their arrest. The relating witness was the statement Walker when he was asked: he you? “What else did tell
“I asked what he Walker told man at Roanoke Rapids about furnishing dynamite all in the violence of Henderson— “Objection. .. (continuing):
“WITNESS Walker said he told the that he man supplied dynamite . . all “Motion .to strike ground the .answer attempts con- ¡is nect Walker with other crimes with not charged. which he here ¡his “SUSTAINED. You wall answer, gentlemen. not consider Dis- your miss it from minds.” Thereupon a motion for The jury permitted mistrial was made. jury
to retire. returned, When “The Reporter, Court the re- quest Hooks, repeats of Mr. last statement of the witness Wil- ¡on son. ground Defendants move for mistrial repetition highly prejudicial that statement. You will anything
“COURT: about question consider that thereto, gentlemen. the answer Dismiss it.
“Q What wa.s said Walker? else ¡carried “A And fixed the bombs and person them to the . . . Who used them — “Objection Sustained. will not
“(cid:127)COURT: You consider the answei’ to the question. Dis- your itmiss from minds. A "DEFENDANTS MOVE FOR MISTRIAL. DENIED. ¡he although told this, “Walker said the man this ¡he ¡him.” time, only bragging portion The foregoing ¡the ¡assignments recoi'd 35 and 36. constitutes
Aaron testified at the conference at motel in Roanoke Rapids Pegi’-am,Walker, and others, there was discussion ¡transformers effectively destroy how -to electric lines fur- ¡assumed may Harriet Mills. nishing power Cotton *15 Company testimony the Power had several that transformers at its 16 —251 IN THE COURT. SUPREME
State v. Walker. should necessary which transformer It to ascertain substation. Aaron testified: power. destroyed prevent the transmission that trans- if we knocked “Pegram said did not think .'he I mills and lights at both out it would knock out former 'mill and the North Henderson him we not interested in told from came power then there about where was a lot discussion feeding Henderson mill. the South
“Q was said about that? What reason I said, He ‘The Pegram Greystone.
“A it from said come cap . . .’ know, you remember when I throwed “Objection by the defendants. Objection
“COURT: overruled. EXCEPTION BY DEFENDANTS EXCEPTION #45. reason he knew it come (continuing): He said the “WITNESS the cowobadn across when he threw Greystone, said that you says, Robert and high-tension wires and he looked at ‘Don’t Hender- lights out at the North Robert, when we knocked the know, plant go did not out. Henderson plant?’ ©ays, son And he ‘The South defendants) to strike. and motion “Objection (by the gentle- answer, You will not consider Motion allowed. “COURT: minds.” men; your .it from dismiss from the crim- objected to relates to crimes distinct remembered that being heard, but must be charge then inal it of the statements made prove offer the truth did not .to upon rests competency of Pegram. .and
Walker ideally them knowledge made experience their that their assertion leader- conspirators and follow the become fitted to confederate and gone out at lights whether the had immaterial ship of Aaron. It was by someone 'wrongful conduct mills because of two Henderson Pegram claimed to know which material that It -was the transformers. destroyed. The did not seek ©how transformers had been dynamite other violence in fact furnished that Walker competent for it to ©how show, and it was sought Henderson. ability accomplish pur- professing his skill and Walker, .boastfully make such a claim. Since conspiracy, should pose of the excluded, necessarily though fol- even competent tire evidence was prosecutor the insistence of a-rose th-e prejudice no lows 81 S.E. 2d jury. McClain, N.C. tíre presenting it to there cited. .authorities placed Aaron’s motel noted, tape recorder previously As purpose recording for the placed was so his consent and room with was, so obtained conspirators. .among the Evidence conversations incompetent. conversations, Irvine v. Cal- engaged those *16 TERM, 483 C.] v. Walker. L. ifornia, Ed. 561. The solicitor had the S. I. U.S. B. agent operated. who it show how This installed machine testi the mony objected assignments to forms the basis of 121-132. .competent partici Since the evidence there as to obtained was the pants, competent explain it was to demonstrate how the machine operated. jurors the Perhaps had never seen such machine some operation. -in the explained
After witness had its opei’ation, solicitor offered the the recordings in he recordings evidence. When offered the he frank- ly said to the recordings. court: “I have In my opinion heard those entirely competent contain matters are not in the evidence in this case of their because relation other matters. offer We here the -tapes recordings. offer We them for use defend- ants, they desire, if and we offer in them in evidence corroboration of the witnesses this case who have testified about those matters.” objected
Defendants tapes to the use of the and moved for a mis- trial, “on the grounds presence of the Solicitor’s statements Jury to his grounds Honor and on the Solicitor has tried advantage take unfair putting the defendants the defendants on spot.” count objection. sustained the Defendants moved The for a mistrial. This motion was denied. argue
Defendants the offering tape of these recordings was so un- fair to demonstrate a® on part prose- deliberate intent of the ,a -prejudice prevent cutor to them and fair trial. This contention must weighed light rulings which the recording court bad made. When played Pegram, defendant he recognized voice, quoted 'his saying but is a® recording “sound- ed poker.” like a bunch of drunks- playing Manifestly, defendants- -in- challenge accuracy tended of the -recording which, according State, Walker, Abbott, -to the caused and Jarrell par- to confess their n ticipation Pegram -deny charge of conspiracy. refuse court, objection by defendants, had/ excluded declarations purpose made defendants for the of showing some- their fit- part conspiracy. ness their As previously stated, this evi- competent against speaker dence was even though it related to ¡the apparently other This was crimes. view which the -solicitor took when he offered defendants, Unlike exception the evidence. an to an ruling erroneous would not avail him. tape recording played important part -an in the trial of it, If the had not offered solicitor -defendants charge
ease. could un- withholding He fairness evidence. could not -well answer he did offer it because it contained statements which he thought incompetent. would deem In court the situation confronting THE IN SUPREME COURT. Walker. thing. He it in evidence and told the 'proper did the offered count parts incompetent. hold He thought the court would nothing find in this record made it the defendants. available We impugn his motives. supervise duty judge It is the trial the trial of cases and *17 may fair panties to control counsel so that the be assured a and manifestly impartial court that trial. Here trial concluded 'by support no in found fact. record accusation made The State, defendants, well as counsel for the for as indicates that counsel diligently respective may their be that sought perform duties. It is true at times each was over zealous. court occasion nothing from our counsel, had to admonish but we find examination impression of the record which leaves the defendants were impartial mot afforded fair trial. a 'and carefully exception assignment and each have examined each We opinion justify nothing which our would another error. We find to any trial defendant.
No error. this part took the consideration decision of case.
Higgiks, J., no my Payton. opinion, In dissenting as to defendant J., Bobbitt, is light State, favorable evidence, when considered in most Payton the con- party wa.s a show that defendant insufficient indictment. spiracies charged the bills of may conspiracy established “The existence conspirator in the absence parte alleged an made ex declaration of committed and .alleged Only bis acts coconspirator. coconspimtors one of the after declarations made only all, then when the declara- competent against formed is is in furtherance of con- acts committed or the are tions are made 263, 66 and oases cited. 234 N.C. spiracy.” Benson, testimony as to principle, Aaron's what Gore and Upon legal this absence) Payton (in compe- had said was not Payton’s said Auslander alleged conspiracies. party to the Payton was a establish that tent to significance por- of this probative the dubious I do not discuss Hence, testimony. Aaron’s tion of findings: establish these is sufficient to competent evidence telephone Gore, had a conversa- (1) endeavoring Aaron, contact (2) message; after Payton gave Aaron’s Gore Payton, tion with telephoned Auslander, Aaron, Payton telephone conversation time; Pay- time to and (3) Payton was contact with whom the Henderson area some Aaron to had sent ton knew Auslander for strike. purpose incident N C FALL TERM, 1959.
Hates
Ricard.
v.
question
crucial
whether the
circumstantial evidence is such
logical
legitimate
may
inferences
be drawn therefrom to
support the factual
Payton
conclusion that
party
was a
to the al-
leged conspiracies.
Stephens,
See
Of if we Payton could assume that then knew the facts hy disclosed us, the evidence now before there would 'be no doubt as to the sufficiency of 'the evidence as to him. But there no evidence that he knowledge had such at the time his telephone conversations with Aaron and with Auslander. many
Activities incident to the Conceding strike were and varied. the sufficiency of the support finding Payton evidence to knew Aaron had been sent Auslander 'to the Henderson area some purpose incident the strike, Payton’s guilt depends or innocence upon knowledge whether party (particular) of and *18 conspiracies alleged view, my the bills In the evi- indictment.. dence, as to Payton, support insufficient to the verdict. LAMM, HAYES, husband, VIRGINIA LAMM HAYES BESSIE H. F. J. POYTHRESS, husband, ZELMA LAMM T. M. TEM POYTHRESS appearing HAYES, PIE ANN HAYES and JACK THOMAS Infants HARRISON, Friend, J. W. WIL herein their Next EUNICE DECKER RICARD and FREE LIAMSON WILL BAPTIST ORPHAN INC., McLEAN, AGE. and H. B. G. CONNOR CHARLES Trustee. (Filed 1960.) January, 1. Trial 4—§ granting denying of motion for a continuance rests presiding judge, sound and Ms discretion decision will not be except disturbed abuse discretion. — Judgments Pleadings § 7% 2. 38: § Ordinarily the discretion of the trial witMn court to determine particular plea whether in the of a case a in bar is to circumstances prior disposed of trial merits. — Pleadings 38: Trial 5% § § pretrial hearing discloses that the record motion for Where denied, plea and that motion continuance that defendants’ in bar prior granted hearing to trial on the merits was be heard on set for a term and the there- court, plea open bar heard in