State v. Brady

• Decision Date: 15 December 1890
• Parties: STATE v. BRADY et al.
• Court: North Carolina Supreme Court

12 S.E. 325

107 N.C. 822

STATE v. BRADY et al.

Supreme Court of North Carolina

December 15, 1890

Syllabus by the Court.

1. In an indictment for a conspiracy to cheat and defraud, the means to be used need not be charged.

2. When there is a general verdict upon an indictment containing two or more counts, if either count is valid, it will support the verdict. State v. Toole, 106, N.C. 736, 11 S.E. Rep 168.

3. When an indictment, otherwise valid, does not convey sufficient information to enable the defendant to prepare for his trial he can apply for a bill of particulars. The rule governing applications for a bill of particulars cited.

4. A prosecutor in a criminal action is not disqualified for that reason as a juror.

5. Though a challenge for the defendant is erroneously disallowed, yet, if it appear that no juror objectionable to such defendant sat on the jury, it is no ground of exception and it makes no difference whether a juror objectionable to such defendant is stood aside by reason of his having other challenges unexhausted, or is rejected on the challenge of a co-defendant.

6. The acts of the different parties alleged to be conspirators can be given in evidence to prove the conspiracy. Approving State v. Anderson, 92 N.C. 732.

7. Whether or not a witness is an expert is a question of fact for the court, and its finding is not reviewable. Approving State v. Cole, 94 N.C. 958.

8. The testimony of a witness as to a collateral matter cannot be contradicted in order merely to impeach him by showing its untruth.

9. When evidence is offered that the defendants "salted" a gold mine, with a view of proving the conspiracy to cheat and defraud, it is not requisite to show, first, that the defendants knew how to salt a mine.

10. On an indictment for a conspiracy to cheat and defraud, the court refused to charge that if the defendants honestly believed the representations to be true, or if the representations were merely matter of opinion, or if the prosecuting witness got cheated by his fear that someone else would get ahead of him, the defendants would not be guilty. Held no error, for the conspiracy, and not the execution of it, is the issue on which the guilt or innocence of the defendants depended.

11. The declaration of a party after the consummation of a conspiracy is evidence only against the defendant who makes it.

12. Code, § 413, only requires the judge to "explain the law arising upon the evidence." The misconception as to this, founded upon State v. Boyle, 104 N.C. 800, 10 S.E. Rep. 696, 1023, corrected.

13. Declarations and acts of a party charged with conspiracy are competent against the other defendants who entered into the conspiracy, when made prior to its completion.

14. It is not material, in an indictment for conspiracy, that the unlawful purpose should be accomplished.

This was an indictment for conspiracy to cheat and defraud, tried before GRAVES, J., and a jury, at August term, 1890, of Moore superior court. The indictment was as follows: "The jurors for the state, upon their oath, present that N. P Brady, M. D. Brady, R. D. Williams, and J. W. H. Cockeman late of the county of Moore, on the 10th day of December, 1887, at and in the county of Moore, with the intent to defraud, unlawfully, wickedly, and deceitfully did conspire together to cheat and defraud Wm. K. Jackson of his goods and chattels, bonds, and tenements, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. And the jurors aforesaid, upon their oath aforesaid, do further present that the said N. P. Brady, M. D. Brady, R. D. Williams, and J. W. H. Cockeman, late of the county of Moore, at and in the said county, on the 10th day of December, 1887, with the intent to defraud, unlawfully, wickedly, and deceitfully did conspire together to cheat and defraud Wm. K. Jackson of his goods and chattels, lands and tenements; and that the said defendants, in pursuance of said conspiracy, did fasely and fraudulently pretend to said W. K. Jackson that two certain tracts of land in Chatham county contained gold mines, well knowing that neither of the said tracts of land contained a gold mine; and that, in pursuance of the said conspiracy, the said M. D. Brady did then and there, in Moore county, unlawfully, knowingly, and designedly obtain from the said W. K. Jackson eight hundred dollars in money, and the said Jackson's note for seven hundred dollars, being then and there the property of the said Jackson, and the said N. P. Brady did then and there, in said county of Moore, unlawfully, knowingly, and designedly obtain from the said W. K. Jackson a certain tract of land on Deep river, in Moore county, of the value of $3,000, being then and there the property of the said Jackson,--contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." The defendants moved to quash the bill, and also in arrest of judgment, which being refused, they excepted. There were sundry exceptions to the evidence, to the charge, and for refusal to charge, all of which sufficiently appear in the opinion. Two of the defendants were acquitted. M. D. Brady and J. W. H. Cockeman were convicted and sentenced, and appealed.

Douglas & Shaw, for appellants.

The Attorney General, J. C. Black, and W. J. Adams, for the State.

CLARK, J., (after stating the facts as above.)

The defendants moved to quash the indictment as to each count on the grounds (1) that it charged no indictable offense; (2) that it did not allege the means by which the cheating and defrauding were to be effected. This motion being denied, it was renewed, on the same grounds, in arrest of judgment, and again denied. A general verdict of guilty as to appellants was returned. There were two counts in the indictment; and, if either was good, it would support the verdict. State v. Morrison, 2 Ired. 9; State v. Toole, 106 N.C. 736, 11 S.E. Rep. 168, and cases there cited. Upon reason and precedent, however, we think both counts are sufficiently alleged. The first count is almost in totidem verbis with that in Sydserff v. Queen, 11 Adol. & E. (N. S.) 245, which was held sufficient by the court of exchequer chamber, affirming the ruling of the queen's bench. The opinion was delivered by WILDE, C.J., (afterwards Lord TRURO,) and cites with approval Queen v. Gompertz, 9 Adol. & E. (N. S.) 823, opinion by Lord DENMAN; King v. Gill, 2 Barn. & Ald. 204, opinion by Lord TENTERDEN; and King v. Eccles, 3 Doug. 337. In the last three cases the indictment charged the conspiracy to cheat and defraud "by divers means," but this was no specification of the means, and even those words did not appear in the indictment in Sydserff's Case. In King v. Eccles, BULLER, J., says that the means need not be charged, for they are "matters of evidence to prove the charge, and not the crime itself;" and that it is quite sufficient to charge the defendants with illegal conspiracy, which of itself is an indictable offense. And in King v. Gill, also just cited, the court points out that the conspiracy would be indictable even when the parties had not settled upon what means they would employ to effectuate their purpose, and hence the means need not be charged. To same effect are later cases. Latham v. Reg., 9 Cox, Crim. Cas. 516, (1864,) and others. The same rule has been upheld in Com. v. McKisson, 8 Serg. & R. 420, and in other cases in this country. 3 Greenl. Ev.§ 95. There have been decisions to the contrary, holding that the means must be charged, but the leading authorities to that effect are to be found in the United States and New York courts, in which jurisdictions the law on this subject has been modified by statute. As the conspiracy or illegal combination is the indictable offense, though no act may be done in pursuance thereof, and indeed without agreeing upon the means to be used, it is difficult to discover any reason why the means should be charged. "If two or more persons conspire to do a wrong, this conspiring is an act rendering the transaction a crime, without any step taken in pursuance of the conspiracy." 1 Bish. Crim. Law, § 432. And in State v. Younger, 1 Dev. 357, it is said: "Every conspiracy to injure individuals, or to do acts which are unlawful, or prejudicial to the community, is a conspiracy, and indictable." "If unexecuted, the means cannot be stated; if executed, the means employed, are but evidence of the offense, or an aggravation of it; for the crime of conspiracy consists of the conspiracy, and not of the execution of it." Wright, Crim. Consp. 189, 191. What has been said as to the first count applies equally to the second. Indeed, the second count is an almost exact copy of the indictment which, upon a motion in arrest of judgment, was held good in State v. Younger, supra, the opinion being delivered by TAYLOR, C.J.

While the courts are not disposed to encourage slovenly or careless pleading in either civil or criminal actions, the whole tendency of legislation is against exacting over refinement and nicety of technical allegation. The office of the indictment is to give the defendant notice of what charge he has to meet. In Goersen v. Com., 99 Pa. St. 398 (which was an indictment for murder,) it is tersely said: "The nature and cause of a criminal prosecution is sufficiently averred by charging the crime alleged to have been committed. This must be done. The mode or manner refers to the instrument with which it was committed, or the specific agency used to accomplish the result. It is not necessary to aver...