State v. Graham, 743SC429

• Decision Date: 19 February 1975
• Docket Number: No. 743SC429,743SC429
• Citation: 211 S.E.2d 805,24 N.C.App. 591
• Parties: STATE of North Carolina v. Jacqueline B. GRAHAM.
• Court: North Carolina Court of Appeals

Page 805

211 S.E.2d 805

24 N.C.App. 591

STATE of North Carolina v. Jacqueline B. GRAHAM.

No. 743SC429.

Court of Appeals of North Carolina.

Feb. 19, 1975.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. John M. Silverstein, Raleigh, for the State.

Charles K. McCotter, Jr., New Bern, for defendant-appellant.

PARKER, Judge.

Defendant's motion to quash the indictment was properly denied. Although somewhat awkwardly expressed, the allegations of the indictment were sufficient to charge that defendant and others did unlawfully conspire and agree, each with the other and with Samuel McCotter, to murder Mary Waldo. This is the crime which the prosecution sought to prove, which defendant's evidence was designed to rebut, and upon which the trial judge charged. At all stages of the trial defendant was fully apprised of the exact accusation against her, and the language of the indictment was sufficient to protect defendant from a subsequent prosecution for the same offense and to enable the court to proceed to judgment. It is of no consequence that defendant was the only person charged and brought to trial on this indictment. 'Although at least two persons are required to create a conspiracy, it is not required that more than one person be prosecuted for the offense.' State v. Horton, 5 N.C.App. 141, 145, 167 S.E.2d 871, 873 (1969), aff'd, 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). Defendant's first assignment of error is overruled.

Defendant's motions for nonsuit were also properly denied. There was evidence that defendant discussed with Samuel McCotter the murder of Mary Waldo and the means by which this might be accomplished, that defendant sent McCotter a picture of Mary Waldo 'for identification purposes,' that she sent sums of money to McCotter, and that after the unsuccessful attempt was made upon Mary Waldo's life, defendant stated to the friend who had introduced her to Samuel McCotter that 'Sammie' knew somebody who would 'finish the job.' This evidence was apply sufficient to support a jury verdict finding that defendant and McCotter had conspired and agreed to effect the murder of Mary Waldo. Defendant's assignments of error directed to the denial of her motions for nonsuit are overruled.

Defendant assigns error to the court's overruling her objections to testimony which tended to implicate her in the shooting of her husband, contending that this testimony was inadmissible as tending to show that she had committed another distinct, independent and separate offense. The rule is that '(e) vidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime.' 1 Stansbury's N.C. Evidence (Brandis Revision) § 91, p. 289 Here, the evidence tending to connect defendant with the shooting of her husband was relevant to show a plan or design on her part to bring about a situation in which she might be free to marry her lover. An integral part of that plan called for the elimination of Mrs. Waldo. 'Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.' State v. McClain, 240 N.C. 171, 176, 81 S.E.2d 364, 367 (1954). There was no error in allowing in evidence the testimony which tended to link defendant with the shooting of her husband.

Defendant assigns error to the admission in evidence over her objections of testimony by Kenneth Waldo concerning statements made to him by defendant during telephone conversations between the witness and the defendant. The witness testified that these conversations took place while he was in the hospital on 20 and 21 April 1973, the day before and the day on which his wife was shot, when defendant inquired if Mary Waldo would be visiting at the hospital and if she would be alone. He also testified to statements made to him by defendant in telephone conversations which took place a few days after Mary Waldo was...