State v. Andrews, 366.

• Citation: 216 N.C. 574,6 S.E.2d 35
• Decision Date: 03 January 1939
• Docket Number: No. 366.,366.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. ANDREWS.

6 S.E.2d 35

216 N.C. 574

STATE.

v.ANDREWS.

No. 366.

Supreme Court of North Carolina.

Dee. 13, 1939.

Appeal from Superior Court, Randolph County; Bobbitt, Judge.

Ernie Andrews was convicted of conspiracy with others to break and enter a house with intent to steal therefrom, and he appeals.

No error.

Appellant's assignment of error in admission of testimony and exceptions to the trial judge's charge were as follows:

Assignments of Error.

The defendant, Ernie Andrews, groups his exceptions and assigns as error:

Exception No. 1: For that His Honor permitted the witness for the State to answer the question: "Q. In September last, did you have a conversation with the defendant, Ernie Andrews, with reference to a transaction with Haithcock about a transaction in Chatham County?"

Exception No. 2: For that His Honor permitted the witness for the State to answer the question: "Q. What statement did Ernie Andrews make to you then about this transaction in Chatham County with Haithcock?"

Exception No. 5: For that His Honor erred in charging the jury as included between the letters (A) and (B) as follows: "Now, gentlemen, it takes more than one person to be guilty of criminal conspiracy. There is no such thing as one man being guilty of criminal conspiracy. So the Court charges you that the possible verdicts in this case are these: You may return a verdict in this case of guilty as to all of the defendants, or you may return a verdict of not guilty as to all the defendants, or you may return a verdict in this case of not guilty as to one of the defendants and guilty as to two of the defendants; but you can not return in this case a verdict of not guilty as to two of the defendants and a verdict of guilty as to one of the defendants."

Exception No. 6: For that His Honor erred in charging the jury as included between the letters (C) and (D) as follows: "The evidence in the case now on trial is known in law as circumstantial evidence. There has been no testimony dealing directly with any agreement entered into between the defendants so far as definite evidence of any particular time or occasion when any such understanding or agreement was made. The State relies in this case upon what is known in law as circumstantial evidence."

Exception No. 7: For that His Honor erred in charging the jury as included between the letters (E) and (F) as follows: "Now, the State of North Carolina contends, gentlemen, that you should return a verdict of guilty as to each of these defendants. The State contends that the evidence offered in your hearing should satisfy you beyond a reasonable doubt that these three defendants, on some date prior to the 5th of January, 1939, entered into a conspiracy, an unlawful confederation, a combination, an understanding and agreement, that they would at some time in the future break and enter, or cause to be broken into and entered, a certain storehouse and other out-buildings or building belonging to one Wiley D. Spencer, with intent to steal therefrom, a certain quantity of whiskey there stored."

Exception No. 8: For that His Honor erred in charging the jury as included between the letters (G) and (H) as follows: "If you have a reasonable doubt, if you fail to so find from the evidence, beyond a reasonable doubt, you will return a verdict of not guilty as to the defendant or defendants concerning whom the State has failed to satisfy you from the evidence, beyond a reasonable doubt, that he or they entered into such criminal conspiracy as the Court has defined to you."

The defendant Ernie Andrews was indicted with Thurman King and Wiley Haithcock for conspiracy by and between themselves, and with Ernest Curl, McBee Moore, and Cal Ferguson, to break and enter the house of one Wiley Spencer, with intent to steal therefrom. The three last named pleaded guilty to the charge of larceny, and testified for the State. There was verdict of guilty of conspiracy as charged against the three first named, and from judgment imposing sentence defendant Andrews appealed.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

John J. Henderson and Cooper A. Hall, both of Burlington, for defendant.

DEVIN, Justice.

The validity of the trial and conviction of the appealing defendant is assailed chiefly on the ground that the evidence was not sufficient to warrant its submission to the jury, and that his motion for judgment as of nonsuit should have been allowed.

Under the established rule to be applied to the consideration of this motion, the evidence must be viewed in the light most favorable to the State, and if there was any substantial evidence to support the charge contained in the bill of indictment, the ruling of the court below must be upheld. State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Rountree, 181 N.C. 535, 106 S.E. 669.

The evidence for the State tended to show that property, consisting of 76 cases of whisky valued at $1,400, was stolen on the night of January 5, 1939, from the building of Spencer in Randolph County; that the defendants King and Haithcock, together with Curl, Moore, and Ferguson, actively participated in the larceny; that they traveled to the scene in two automobiles belonging to defendant Andrews,...