State v. Foster

• Decision Date: 15 October 1947
• Docket Number: 221
• Citation: 44 S.E.2d 447,228 N.C. 72
• Parties: STATE v. FOSTER et al.
• Court: North Carolina Supreme Court

44 S.E.2d 447

228 N.C. 72

STATE v. FOSTER et al.

No. 221

Supreme Court of North Carolina

October 15, 1947

Criminal prosecution on indictment charging the defendants with gambling, i.e., playing poker at which money was bet.

It appears from facts set out in brief of defendants that on 5 July, 1946, at about 1:30 A.M., while the defendants were playing poker in the kitchen of the home of James Foster, a machine gun was thrust through the screen door, and the defendants were commanded to keep their hands on the table. Two masked men, one with a machine gun and the other with a pistol, then entered the room, forced the defendants to stand with their faces to the wall, and each was robbed of the money he had on his person. The money on the table was also taken. James Foster was then marched into another room and forced to open his safe, which contained approximately $19,000. In all, the robbers got about $20,000.

At the August Term, 1946, Wilkes Superior Court, indictments were returned by the grand jury against Carl Keaton, Cola Keaton and Calvin Spillman, charging them with robbery, and against the defendants herein, James Foster, Dobe Powell Charlie Combs and Joe Holland (together with Calvin Spillman), charging them with gambling. (Calvin Spillman was physically unable to attend court and has not been tried on either indictment.)

The defendants, and each of them, pleaded guilty of gambling.

Judgment as to each defendant: 12 months in jail 'and assigned to work on the roads at hard labor as provided by law, and pay the cost.'

Thereupon at the same term of court, each of the defendants filed motion in arrest of judgment and proffered a plea in amnesty based on the following allegations:

1. On the bill charging Carl Keaton et al. with robbery from the person with fire-arms, which was sent to the grand jury at the August Term, 1946, these defendants were listed as witnesses, and two of them, James Foster and Dobe Powell, actually appeared and disclosed to the grand jury the game of chance they were engaged in playing at the time of the holdup and robbery. This was with the full knowledge and consent of the solicitor.

2. The same grand jury returned a true bill against these defendants for gambling.

3. These defendants were advised that, as a matter of strategy it would materially assist in obtaining a conviction in the robbery case, if the two indictments were consolidated for trial and pleas of guilty entered by the defendants in the gambling case. Whereupon, the consolidation being 'agreed upon and approved by the court,' these defendants entered pleas of guilty to gambling prior to the empaneling of the jury in the robbery case, said pleas being entered 'for the purpose of aiding and assisting the Solicitor for the State of North Carolina to obtain a conviction in the robbery case.'

4. These defendants were used by the State as witnesses in the robbery case, and convictions were obtained therein on their testimony. Indeed, the consolidation and trial of the robbery case with one in which there was nothing to try could have been only for the purpose of aiding in the prosecution of the robbers.

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