State v. Gibson, 651

• Decision Date: 07 June 1951
• Docket Number: No. 651,651
• Citation: 65 S.E.2d 508,233 N.C. 691
• Parties: STATE, v. GIBSON et al.
• Court: North Carolina Supreme Court

Page 508

65 S.E.2d 508

233 N.C. 691

STATE, v. GIBSON et al.

No. 651

Supreme Court of North Carolina.

June 7, 1951

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

P. W. Glidewell, Sr., Reidsville, Shelley B. Caveness and Joe D. Franks, Jr., Greensboro, for defendants.

STACY, Chief Justice.

We have here for decision (1) the validity of the indictment, (2) the competency of evidence, (3) the propriety of a colloquy between court and counsel, and (4) the legality of suspended sentences.

I. The Validity of the Indictment.

The defendants have pressed their motion for quashal of the indictment with conviction and apparent confidence. They seem assured that it offends the rule against duplicity or multifariousness in a single bill, and that in the first and fourth counts, two separate and distinct offenses are joined without naming the defendants in respect of the second alleged offense. For this latter position, they cite State v. Camel, 230 N.C. 426, 53 S.E.2d 313, as controlling: and State v. Robinson, 224 N.C. 412, 30 S.E.2d 320; State v. Wilson, 121 N.C. 650, 28 S.E. 416, and State v. Cooper, 101 N.C. 684, 8 S.E. 134, as fully supporting their position.

We think the defendants have misconceived the intent and purpose of the First and Fourth Counts in the bill. These counts charge only a single offense, i. e., conspiracy to do two things: (1) to operate a lottery (violative of G.S. § 14-290), and (2) to sell tickets therein (violative of G.S. § 14-291.1). Thus, the State elected in drafting these counts to assume a double burden--to establish the operation of a lottery by the defendants and the sale by them of tickets therein. The court was careful to make this plain to the jury. However, just one offense is charged, and a single sentence was imposed on each count. Hence, the authorities cited and relied upon would seem to be inapplicable to the facts of the instant record.

In respect of the alleged duplicity or multifariousness of the entire bill, it is sufficient to say the central indictment is for conspiracy. All the remaining counts are related to each other 'and to the single transaction or series of transactions which grow out of the one concatenated design'. State v. Dale, 218 N.C. 625, 12 S.E.2d 556, 564; State v. Jarrett, 189 N.C. 516, 127 S.E. 590.

Speaking to the question in State v. Malpass, 189 N.C. 349, 127 S.E. 248, 250, Varser, J., said: 'The rule in this state now is that different counts relating to the same transaction, or to a series of transactions, tending to one result, may be joined, although the offenses are not of the same grade', citing as authority for the position. State v. Lewis, 185 N.C. 640, 116 S.E. 259; State v. Burnett, 142 N.C. 577, 55 S.E. 72; State v. Howard, 129 N.C. 584, 40 S.E. 71; State v. Harris, 106 N.C. 682, 11 S.E. 377; State v. Mills, 181 N.C. 530, 106 S.E. 677.

The bill here suffices to withstand the charge of duplicity. The challenge is not sustained. G.S. § 15-152; State v. Anderson, 208 N.C. 771, 182 S.E. 643; 5 R.C.L. 1081; 11 Am.Jur. 562; I Wharton's Crim.Procedure 624; Joyce on Indictments (2d) 657.

II. The Competency of Evidence.

The defendants objected to the testimony of Leonard reciting that L. C. Sykes was one of the operators of the lotteries; that he had a calculator in his home for totaling tickets, which the witness identified; that Sykes had been tried and convicted and had since left the State or town.

The indictment charges that the defendants (naming them) 'did * * * conspire together and with each other and divers other persons' to operate lotteries in Guilford County, etc. It was therefore competent to show who the 'divers other persons' were, or to make known the other conspirators in the enterprise. State v. Andrews, 216 N.C. 574, 6 S.E.2d 35. Without objection, the witness freely told of conversations and transactions with C. A. (Shug) York after a mistrial had been ordered as to him or in his case. If the defendants now find it embarrassing to be identified as associates of L. C. Sykes, they have no one to blame but themselves. State v. Beal, 199 N.C. 278, 154 S.E. 604. The association was originally of their own choosing.

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. Williams, 216 N.C. 446, 5 S.E.2d 314. The acts and declarations of each conspirator, done or uttered in furtherance of the common, illegal design, are admissible in evidence against all. State v. Ritter, 197 N.C. 113, 147 S.E. 733. 'Everyone who enters into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any one of the others, in furtherance of such common design'. State v. Jackson, 82 N.C. 565; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Summerlin (Hole-in-the-Wall Case), 232 N.C. 333, 60 S.E.2d 322; State v. Anderson, 208 N.C. 771, loc. cit. 786, 182 S.E. 643; State v. Herndon, 211 N.C. 123, 189 S.E. 173.

The calculator was competent to be shown in evidence as a part of the paraphernalia used in the operation of the lotteries. State v. Wells, 219 N.C. 354, 13 S.E.2d 613; State v. Fogleman, 204 N.C. 401, 168 S.E. 536; State v. Lea, 203 N.C. 13, 164 S.E. 737; Stansbury's N. C. Evidence, Sec. 85.

Moreover, in cases grounded on fraud or conspiracy, considerable latitude is allowed in the reception of evidence offered to establish the gravamen of the charge or offense. Direct evidence of the charge is not essential, though here it is both direct and positive, with its credibility, however, sharply challenged. The calculator was offered to bolster the testimony of the witness whose credibility was being attacked. It was competent for this purpose. State v. Anderson, supra.

III. Propriety of Colloquy Between Court and Counsel.

The defendants stressfully contend that their cases were prejudiced when the court directed counsel to 'sit down' as a result of the colloquy shown in the record; that the direction clearly revealed the court's impatience with their defenses and the manner in which they were being conducted, and that the court's displeasure or opinion in this respect was further emphasized at the opening of the charge when the jury was told the State's evidence 'is not contradicted'.

Conceding that the direction in question and the further remark in respect of the State's uncontradicted evidence may have been somewhat incautious or infelicitous or even indicative of impatience with the defenses offered by the defendants, we hardly think the effect was as hurtful or impeaching as the defendants now contend. At least, as we apprehend the record, the impeachment appears insufficiently pronounced to overcome the presumption against it. In re Will of Johnson, 233 N.C. 570, 65 S.E.2d 12. The appellants have the burden of showing harmful error, and they must make it appear plainly, as the presumption is the other way. Nor is it sufficient merely to cast doubt on the validity of the proceeding. The appellants have the burden of showing error. Collingwood v. WinstonSalem Southbound R. R. Co., 232 N.C. 192, 59 S.E.2d 584; Nichols v. Wachovia Bank & Trust Co., 231 N.C. 158, 56 S.E.2d 429; Scott v. Swift & Co., 214 N.C. 580, 200 S.E. 21.

True, the authorities are to the effect that at no time during the trial of a cause may the presiding judge cast doubt upon the testimony of a witness, impeach his credibility, or discredit the efforts of either party before the jury. State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Perry, 231 N.C. 467, 57 S.E.2d 774. This may be done by the use of language or conduct calculated to impair the credit which the jury might otherwise or under normal conditions give to the testimony or the position of one of the parties. State v. Simpson, 233 N.C. 438, 64 S.E.2d 568; State v. Carter, 233...