State v. Brewer

• Citation: 129 S.E.2d 262,1 A.L.R.3d 1323,258 N.C. 533
• Decision Date: 01 February 1963
• Docket Number: No. 441,441
• Parties: , 1 A.L.R.3d 1323 STATE of North Carolina v. Plerce Oliver Kidd BREWER, Robert A. Burch, Robert M. Burch, George Masefield, Martin J. Hamilton, Walter Schoenfeldt, Pfaff & Kendall, a corporation, Traffic and Street Sign Company, a corporation.
• Court: United States State Supreme Court of North Carolina

Page 262

129 S.E.2d 262

258 N.C. 533, 1 A.L.R.3d 1323

STATE of North Carolina v. Plerce Oliver Kidd BREWER, Robert A. Burch, Robert M. Burch, George Masefield, Martin J. Hamilton, Walter

Schoenfeldt, Pfaff & Kendall, a

corporation, Traffic and

Street Sign Company,

a corporation.

No. 441

Supreme Court of North Carolina.

Feb. 1, 1963

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

Seawell & Harrell, by Bernard A. Harrell, Raleigh, for defendant appellant Brewer.

William T. Hatch, and Elbert Richard Jones, Jr., Raleigh, for defendant appellants Robert A. Burch and Robert M. Burch.

PARKER, Justice.

All the defendants, except the corporate defendants, charged in the indictment, prior to pleading to the indictment, filed a joint written motion to quash the indictment, and each and every count therein. The motion to quash covers more than fourteen pages in the record. The motion to quash avers that the first count in the indictment should be quashed for the following reasons: One. It shows on its face the offense charged is a misdemeanor which it alleges occurred on or about 1 August 1957, and therefore the prosecution is barred by the two-year Statute of Limitations, G.S. § 15-1. Two. It 'contains within one count three separate and distinct averments of conspiracy: (a) a conspiracy to violate G.S. § 14-353; (b) a conspiracy that the defendants, with the exception of Robert A. Burch, conspired to offer and promise money to Robert A. Burch, with the intent and purpose of influencing his activities in relation to his employer's business; (c) the defendants, other than Robert A. Burch, conspired that Robert A. Burch would accept money or other gratuities.' This is duplicity and a failure to comply with the requirements of G.S. § 15-152. Three. It fails to comply with the requirements of G.S. § 15-153. Four. G.S. § 14-353, upon which the indictment is based, is unconstitutional and repugnant to the 'due process of law' clause of section one of the 14th Amendment to the United States Constitution, and to 'the law of the land' clause of Article I, section 17, of the North Carolina Constitution, in that the statute is so vague and indefinite, it is void for uncertainty, and further the statute constitutes an arbitrary, capricious and unreasonable exercise of the police power of the State. The motion to quash alleges that the remaining eleven counts in the indictment should be quashed for substantially the same reasons as the first count in the indictment should be quashed.

The court denied the joint motion to quash the indictment and each and every count therein, and the defendants who made the motion excepted. Whereupon, all the defendants entered pleas of Not Guilty. Defendants Brewer and the two Burches assign as errors the denial to quash the counts in the indictment upon which they were convicted.

Defendant Brewer has filed a brief. The defendants Burch have filed a joint brief. In the two briefs the first question presented for decision is: Whether or not the prosecution of the first count in the indictment is barred by G.S. § 15-1. Defendant Robert M. Burch was acquitted on the first count.

The part of the statute relevant to appellants' contention is: '* * * all misdemeanors except malicious misdemeanors, shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards * * *.' The statute has a proviso, which is not applicable here.

A violation of G.S. § 14-353 is explicitly stated by the statute to be a misdemeanor. The State makes no contention that a violation of G.S. § 14-353 is a malicious misdemeanor. In fact, a violation of this statute is not a malicious misdemeanor. State v. Frisbee, 142 N.C. 671, 55 S.E. 722.

In this jurisdiction a conspiracy to commit a misdemeanor is a misdemeanor. State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25.

'As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete.' State v. Knotts, 168 N.C. 173, 188, 83 S.E. 972, 979. 'No overt act is necessary to complete the crime of conspiracy,' State v. Davenport, 227 N.C. 475, 494, 42 S.E.2d 686, 699, or as stated in State v. Whiteside, 204 N.C. 710, 169 S.E. 711, 'the 'conspiracy' is the crime and not its execution.'

The indictment was found at the April Assigned Term 1962 of Wake County superior court, and the trial term was the June 1962 Term of said court. The first count in the indictment charges that all the defendants 'on or about the 1st day of August, 1957, as well before as after said date, and continuing from said date until on or about the 1st day of February, 1962 * * * unlawfully and willfully and with common design and set purpose and in a secret manner, did combine, confederate, scheme, agree and conspire together and with each other * * *.'

Appellants argue that in North Carolina a criminal conspiracy is a completed crime as soon as the union of wills for the unlawful purpose is perfected, that no overt act is necessary to complete the crime of conspiracy, that count one in the indictment alleges that the conspiracy existed and was completed on or about 'the 1st day of August 1957,' that the indictment was found at the April Assigned Term 1962, and, therefore, the prosecution on the first count in the indictment is barred by G.S. § 15-1.

Defendant Brewer and defendant Robert A. Burch were convicted on the fifth, sixth, seventh, eighth, ninth, tenth and eleventh counts in the indictment, all of which charge overt acts in furtherance of the conspiracy charged in the first count of the indictment on the following dates respectively: Fifth count, on or about 1 June 1960; sixth count, on or about 16 June 1960; seventh count, on or about 23 August 1960; eighth count, on or about 23 August 1960; ninth count, on or about 1 February 1961; tenth count, on or about 1 February 1961; eleventh count, on or about 1 June 1961. Defendant Robert M. Burch was acquitted on counts five and six

In United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168, the first count of the indictment alleges 'that the defendants in error and others named, on December 30, 1903, and from that day until the day of presenting the indictment (July 1, 1909), have engaged in an unlawful conspiracy in restraint of trade in refined sugar among the several states of the Union * * *. It then sets forth, at length, the means by which the alleged purpose was to be accomplished, and what are put forward as overt acts done in pursuance of the plan.' Mr. Justice Oliver Wendell Holmes, speaking for the Court, said in replying to a contention of the defendants in error similar to the contention made here:

'The defendants argue that a conspiracy is a completed crime as soon as formed, that it is simply a case of unlawful agreement, and that therefore the continuando may be disregarded, and a plea is proper to show that the statute of limitations has run. Subsequent acts in pursuance of the agreement may renew the conspiracy or be evidence of a renewal, but do not change the nature of the original offense. So also, it is said, the fact that an unlawful contract contemplates future acts, or that the results of a successful conspiracy endure to a much later date, does not affect the character of the crime.

'The argument, so far as the premises are true, does not suffice to prove that a conspiracy, although it exists as soon as the agreement is made, may not continue beyond the moment of making it. It is true that the unlawful agreement satisfies the definition of the crime, but it does not exhaust it. It also is true, of course, that the mere continuance of the result of a crime does not continue the crime. United States v. Irvine, 98 U.S. 450, 25 L.Ed. 193, 3 Am. Crim.Rep. 334. But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up, and there is such continuous co-operation, it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies, rather than to call it a single one. Take the present case. A conspiracy to restrain or monopolize trade by improperly excluding a competitor from business contemplates that the conspirators will remain in business, and will continue their combined efforts to drive the competitor out until they succeed. If they do continue such efforts in pursuance of the plan, the conspiracy continues up to the time of abandonment or success. A conspiracy in restraint of trade is different from and more than a contract in restraint of trade. A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not the contract, but is a result of it. The contract is instantaneous, the partnership may endure as one and the same partnership for years. A conspiracy is a partnership in criminal purposes. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any new agreement specifically directed to that act.

'To sum up and repeat: The indictment charges a continuing conspiracy. Whether it does so with technical sufficiency is not before us. All that we decide is that a conspiracy may have continuance in time, and that where, as here, the indictment, consistently with the other facts, alleges that it did so continue to the date of filing, that allegation must be denied under the general issue, and not by a special plea. Under the general issue all defenses, including the defense that the conspiracy was ended by success, abandonment, or otherwise, more than three years before July 1, 1909, will be open and unaffected by what we now decide.'

In substantial accord with the Kissel case, see Hyde v. United States, 225...