State v. Carey

• Citation: 206 S.E.2d 213,285 N.C. 497
• Decision Date: 01 July 1974
• Docket Number: No. 16,16
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Anthony Douglas CAREY.

Page 213

206 S.E.2d 213

285 N.C. 497

STATE of North Carolina v. Anthony Douglas CAREY.

No. 16.

Supreme Court of North Carolina.

July 1, 1974.

Robert Morgan, Atty. Gen., James F. Bullock, Deputy Atty. Gen., and Raymond W. Dew, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.

Gene H. Kendall, Charlotte, for defendant appellant.

HUSKINS, Justice:

The action of the trial court in overruling defendant's motion for judgment of nonsuit in the conspiracy case constitutes his first assignment of error.

'A criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme--the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means. The conspiracy is the crime and not its execution.' State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964), and cases cited therein; Accord, 16 Am.Jur.2d, Conspiracy § 1 (1964). '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, 83 S.E. 972 (1914).

Viewed in the light most favorable to the State, the evidence shows that defendant, Peanut Mitchell, Harold Givens, Antonio Dorsey, and defendant's brother Butch Carey were together on 18 June 1973 when the robbery was planned. As they drove past the Exxon station on that date Butch Carey said: 'That is the man right there we are going to get the money from. We need someone who is not scared.' Peanut Mitchell suggested that defendant go with him to rob the station. Defendant rejected the suggestion because the Charlotte Police had his photograph and fingerprints on file. The same group re-assembled on 19 June 1973 and, just prior to the actual robbery attempt, defendant said: 'It's a whole lot of money in there, and we can get a whole lot of money from him.' During the robbery attempt defendant remained in the car with Butch Carey and Antonio Dorsey, awaiting the return of the robbers with the fruits of the crime. He was a willing participant in the scheme.

Since the gravamen of the offense of conspiracy is the agreement or union of wills for the unlawful purpose, active participation in the planned criminal activity is not required to establish guilt. 'A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude toward an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.' 16 Am.Jur.2d, Conspiracy § 15 (1964).

In State v. Turner, 119 N.C. 841, 25 S.E. 810 (1896), we said that '(t)hose who aid, abet, counsel Or encourage, as well as those who execute their designs, are conspirators. . . .' (emphasis added) In State v. Andrews, 216 N.C. 574, 6 S.E.2d 35 (1939), responding to a contention similar to that advanced by this defendant, we said: 'The fact that the appealing defendant did not personally participate in the overt act is not material if it be established by competent evidence that he entered into an unlawful confederation for the criminal purpose alleged.'

In light of these legal principles, we hold the evidence is sufficient to make out a Prima facie case of conspiracy and to withstand the motion for judgment of nonsuit.

By like reasoning, defendant argues that since he did not actively participate in the armed robbery attempt he is not criminally responsible for the murder committed in that attempt. Denial of his motion to nonsuit the murder case is assigned as error.

'Those who enter into a conspiracy to violate the criminal laws thereby forfeit their independence, and jeopardize their liberty, for, by agreeing with another or others to engage in an unlawful enterprise, they thereby place their safety and freedom in the hands of each and every member of the conspiracy.' State v. Gibson, 233 N.C. 691, 65 S.E.2d 508 (1951).

'The felony-murder rule applies whenever a conspiractor kills another person in the course of committing a felony, as against the contention that the killing was not part of the conspiracy. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence, which may result in the taking of life unlawfully, Every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design.' 1 Wharton's Criminal Law and Procedure § 251 (1957) (emphasis added). Accord, 40 Am.Jur.2d, Homicide §§ 34--35 (1968); 40 C.J.S. Homicide § 9e(1) (1944). For a more general statement of the same principle, see State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955); State v. Smith, 221 N.C. 400, 20 S.E.2d 360 (1942); State v. Williams, 216 N.C. 446, 5 S.E.2d 314 (1939); 16 Am.Jur.2d, Conspiracy § 14 (1964).

The following statement from State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970), is in agreement with the general rule and is most appropriate here: '(W)hen a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree.' Accord, State v. Bell, 205 N.C. 225, 171 S.E. 50 (1933).

Application of the foregoing principles to the evidence in this case leads inexorably to the conclusion that defendant's motion for judgment of nonsuit in the murder case was properly denied. The evidence makes a case for the jury. Defendant's first assignment of error is overruled.

Defendant contends the trial court erred in allowing James Calvin Mitchell, alleged co-conspirator, to testify to defendant's involvement in the conspiracy. Defendant argues that the State is required to establish the existence of the conspiracy by independent proof before evidence of the conspiracy from a co-conspirator can be introduced.

The principles defendant urges us to apply in this case were stated in State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969), as follows:

'The general rule is that when evidence of a prima facie case of conspiracy has been introduced, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; 16 Am.Jur.2d, Conspiracy, §§ 35, 36, 37, 38, pp. 146, 147 (citing authorities). Consideration of the acts or declarations of one as evidence against the co-conspirators should be conditioned upon a finding: (1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended. State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Lea, 203 N.C. 13, 164 S.E. 737; 11 Am.Jur. 571. Of course a different rule applies to acts and declarations made before the conspiracy was formed or after it terminated. Prior or subsequent acts or declarations are admissible only against him who committed the acts or made the declarations.'

Defendant seeks to apply a sound principle of law to an ineligible state of facts. Of course, the existence of a conspiracy must be established by evidence Aliunde for 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, however, affords this defendant no solace because this case does not involve the use of Acts and declarations of one conspirator against another. Rather, it involves the Sworn testimony of one conspirator against another.

It is seldom that the State can show the existence of a conspiracy by direct proof, but when the testimony of a co-conspirator is available it is competent to establish the conspiracy. State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322 (1950). A co-conspirator is an accomplice and is always a competent witness. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964); 16 Am.Jur.2d, Conspiracy § 41 (1964). It has been held in many cases that the unsupported testimony of a co-conspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution. State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969), cert. denied, 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545 (1970). See State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954); State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951).

Under applicable principles of law James Calvin Mitchell was a competent witness to testify to the conspiracy. Defendant's second assignment of error is overruled.

Prior to arraignment the trial judge instructed the solicitor and defense counsel that the fact that this was a capital case or that the death penalty might be imposed should not be mentioned in the presence of the jury. Defendant objected to this instruction and now assigns it as error. He contends that denial of his right to question prospective jurors concerning their views on capital punishment or to inform them of the punishment prescribed by law upon a verdict of guilty of first degree murder was prejudicial and requires a new trial.

The basic concept in jury selection is that each party to a trial has the right to present his cause to an unbiased an impartial jury. State v. Spence, 274 N.C. 536, 164 S.E.2d 593 (1968); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968). 'A defendant on trial has the right to reject any juror for cause or within the limits of his peremptory challenges before the panel is completed.' State v. McKethan,...