State v. Ferguson

• Decision Date: 04 April 1952
• Docket Number: No. 16612,16612
• Court: South Carolina Supreme Court
• Parties: STATE v. FERGUSON et al.

Page 355

70 S.E.2d 355

221 S.C. 300

STATE v. FERGUSON et al.

No. 16612.

Supreme Court of South Carolina.

April 4, 1952.

C. T. Graydon, Columbia, Hugh M. McAulay, Charlotte, N. C., for appellant.

T. P. Taylor, Sol., Columbia, for respondent.

HENDERSON, Acting Associate Justice.

There are two counts in the indictment in this case. In one the appellants, George W. Ferguson and D. O. Spires, with seventeen other persons, are charged with conspiring to set up a numbers lottery. In the second count the same defendants are charged with setting up a lottery in violation of section 1231 of the Code. Sixteen of the defendants plead guilty, the case against one was withdrawn from the jury, and the two appellants were tried. Ferguson was found guilty under both counts. Spires was convicted under the conspiracy charge only.

The first nine exceptions relate to the indictment. The appellants moved to quash the indictment, and in several other motions made during the trial contended that they could not be charged at the same time with conspiracy and with setting up a lottery. In their exceptions they claim that the first count should have been eliminated, and the trial should have proceeded on the second count only, which charged a violation of the lottery statute.

The first count, after alleging the conspiracy, sets forth certain overt acts in fulfillment of the contemplated crime. In criminal conspiracy it is not necessary to prove an overt act. The gist of the crime is the unlawful combination. The crime is then complete, even though nothing further is done. State v. Ameker, 73 S.C. 330, 53 S.E. 484. As a result, it is not necessary that the indictment should allege an overt act. Frequently, however, this is done, and such allegation may be rejected as surplusage. 15 C.J.S., Conspirary, § 88, p. 1131; 11 Amer.Juris. 563.

It is true that in some cases where concerted action is necessary, as for example in certain sexual offenses, it is not permitted to charge one in the same indictment with a conspiracy and also with the substantive crime. The setting up of a lottery, however, is not necessarily one which requires concerted action. One person may set up a lottery or expose it to be played.

Especially where the completed crime is a misdemeanor, a conspiracy does not merge into it, but is a distinct offense in itself and punishable as such, notwithstanding that the object of the conspiracy has been accomplished. 15 C.J.S., Conspiracy, § 76, p. 1108; 11 Amer.Juris. 549.

The indictment sufficiently alleges the facts of the agreement. 15 C.J.S., Conspiracy, § 80, p. 1112. It charges that at a certain time and place the defendants wilfully and unlawfully agreed, confederated, conspired, and banded themselves together to set up and expose to be played a lottery, commonly known as the numbers game, and it fully described how the game was to be conducted.

The Trial Judge, in our opinion, properly refused the motions directed to the indictment.

It is next contended by the appellants that the Circuit Judge was in error in refusing to grant their motion for segregation of the witnesses. The exclusion of the witnesses from the court room is a matter which rests largely in the discretion of the trial judge. State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523. We find no abuse of discretion in this instance.

The appellants objectd to the admission of certain testimony as to declarations of the defendants, Jolly and Walker, out of the presence of the appellants. We see no error here, since when a conspiracy is shown all declarations in furtherance thereof, by any of the conspirators, to advance the common cause, are evidence against all, though not made in the presence of each other. State v. Blackwell, S.C., 67 S.E.2d 684, 685.

'When prima facie evidence of a conspiracy has been introduced, the acts and declarations of any conspirator during the pendency of the conspiracy, and in furtherance thereof, or in regard thereto, are the acts and declarations of each and of all the conspirators, and are admissible against any or all of them.' State v. Kennedy, 85 S.C. 146, 67 S.E. 152, 155.

Under the fourth question involved, it is said that the trial judge erred in allowing the witnesses, O. L. Brady, J. P. Strom, and S. A. Griffith to testify as to statements made to them by Lucinder Smith, the appellants contending that this was simply an effort on the part of the State to bolster up its own witness. Some of this evidence was excluded by Judge Bellinger. All of the statements which were admitted were made in the presence of Spires, who himself took part in the conversation. We think there was no error in admitting this evidence, or in refusing to grant a mistrial thereabout.

In two of the exceptions the appellant Spires claims that the Circuit Judge should have directed a verdict of not guilty in his favor as to the conspiracy charge. This defendant was a detective on the police force of the City of Columbia. There was evidence that Ferguson, Walker, Jolly, and a number of the other defendants had gathered one night at the home of David DuValt for the purpose of organizing a lottery game. Ferguson, who was the leading spirit, told the others that he had made arrangements for protection and 'had paid off the law'. Upon some of the defendants expressing misgivings as to the truth of this, the defendant Jolly said: 'To show you that I am right, I will get the law out here, and let him talk to you.' He went to a telephone, and soon came back into the room, reporting that 'they will be here in a few...