State v. Benson, 217
| Decision Date | 10 October 1951 |
| Docket Number | No. 217,217 |
| Citation | 234 N.C. 263,66 S.E.2d 893 |
| Parties | STATE, v. BENSON. |
| Court | North Carolina Supreme Court |
M. Butler Prescott, Raleigh, for defendant-appellant.
Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.
The defendant entered a general demurrer to the evidence and moved to dismiss the cause as in case of nonsuit. His exception to the ruling of the court thereon does not present for decision the question whether there was any sufficient evidence to support the count charging a conspiracy to violate the prohibition law. If defendant desired to challenge the sufficiency of the evidence to establish a conspiracy, he should have directed his motion to that particular count.
The State offered evidence of declarations made to an officer by Boykin sometime prior to the search to the effect that he was working for Benson; that he did not have any whisky then but his boss had gone after some and would be back soon. At a later time, on the day before the search, Boykin told the officer he had no bonded whisky. His boss was on a drunk. He had some fairly good white whisky. He sold the officer one-half gallon of white whisky and some Seven-Up.
This evidence was nothing more than hearsay and was incompetent. Objection thereto should have been sustained.
The existence of a conspiracy may not be established by the ex parte declaration of an alleged conspirator made in the absence of his alleged coconspirator. Only evidence of the acts committed and declarations made by one of the coconspirators after the conspiracy is formed is competent against all, and then only when the declarations are made or the acts are committed in furtherance of the conspiracy. State v. Wells, 219 N.C. 354, 13 S.E.2d 613; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Herndon, 211 N.C. 123, 189 S.E. 173.
To render such statements competent, there must be evidence aliunde of the existence of the conspiracy at the time and the participation therein of the party against whom the evidence is offered. State v. Blanton, 227 N.C. 517, 42 S.E.2d 663.
There is no evidence aliunde tending to show the existence of a conspiracy between Boykin and the defendant at the time these declarations were made. The evidence as to the search, the finding of liquor in the room in which Boykin slept, and the presence of defendant at his store at...
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State v. Carey
...the Acts and declarations of one conspirator, in furtherance of the common design, to be competent against the others. State v. Benson, 234 N.C. 263, 66 S.E.2d 893 (1951); State v. Blanton, 227 N.C. 517, 42 S.E.2d 663 (1947); 2 Strong's N.C. Index 2d, Conspiracy § 5 (1967). This rule, howev......
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State v. Cooley, 7910SC1057
...the present action from the cases cited by defendant, e. g., State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Benson, 234 N.C. 263, 66 S.E.2d 893 (1951); United States v. Gutierrez, 559 F.2d 1278 (5th Cir. 1977). Of course, insofar as the Federal cases cited by defendant are no......
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State v. Walker, 373
...against all, and then only when the declarations are made or the acts are committed in furtherance of the conspiracy. ' State v. Benson, 234 N.C. 263, 66 S.E.2d 893, 894, and cases Upon this legal principle, Aaron's testimony as to what Gore and Auslander said (in Payton's absence) Payton h......
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State v. Golder
...the party must argue a specific insufficiency of the evidence issue in order to preserve that issue for appellate review. 234 N.C. 263, 264, 66 S.E.2d 893, 894 (1951). In Benson , this Court concluded that although "[t]he defendant entered a general demurrer to the evidence and moved to dis......