State v. Hightower

• Citation: 69 S.E.2d 363,221 S.C. 91
• Decision Date: 06 February 1952
• Docket Number: No. 16589,16589
• Parties: STATE v. HIGHTOWER.
• Court: United States State Supreme Court of South Carolina

Page 363

69 S.E.2d 363

221 S.C. 91

STATE v. HIGHTOWER.

No. 16589.

Supreme Court of South Carolina.

Feb. 6, 1952.

Edwin H. Cooper, Columbia, B. E. Nicholson, Edgefield, for appellant.

Jeff D. Griffith, Sol., Saluda, Watson Dorn, Greenwood, for respondent.

FISHBURNE, Justice.

The appellant was tried and convicted at the March Term of the Court of General Sessions for Edgefield County, upon an indictment charging him and 'other persons unknown' with conspiracy to cheat and defraud the State of South Carolina, by unlawfully obtaining and selling information concerning a teacher examination given by the Department of Education on February 19, 1949.

The first two questions presented by the appeal relate to the indictment. It is charged that the trial court erred in refusing to quash the indictment upon the grounds, (1) that its allegations were too vague and indefinite to fully apprise appellant of the crime for which he was being tried; and (2) that the indictment was defective in that it failed to name any person or coconspirator with whom the defendant was alleged to have conspired.

The indictment charges: 'That Willar Howard Hightower and other persons unknown, late of the county and state aforesaid, on the 18th day of February in the year of our Lord one thousand nine hundred and forty nine * * * at Edgefield Court House in the County and State aforesaid did unlawfully, feloniously and wilfully agree, confederate, conspire and band themselves together with the wilful, unlawful and felonious intent and purpose of cheating and defrauding the State of South Carolina and the taxpayers thereof of the sum of One Hundred ($100.00) Dollars or more, in that they, the said Willar Howard Hightower and other persons unknown, together with numerous other persons, conspired to and did obtain and purchase answers to the National Teacher Examination to be given by a department of the State of South Carolina on February 19, 1949, which examination was given to those teaching and desiring to teach in the State of South Carolina for the purpose of establishing, in part, the amount of salary to be paid to such teachers and would-be teachers, and did in furtherance of said conspiracy and unlawful confederation, sell to Minerva Dow and to numerous others about to take said National Teacher Examination the answers to questions contained in the National Teacher Examination, which sales were made prior to said examination, all with the intent and purpose of aiding, abetting, assisting and causing said Minerva Dow and numerous other teachers and would-be teachers to obtain ratings to which they were not entitled and for which they were not qualified, thus aiding, assisting and abetting said Minerva Dow and numerous other teachers and would-be teachers to obtain money from the State of South Carolina to which they would not be entitled by reason of their own personal qualifications and capabilities, against the form of the Statute in such case made and provided, and against the peace and dignity of the State.'

A reading of the indictment dispels any doubt or question that it contains a sufficient statement of the facts relied on as constituting the offense in ordinary and concise language, and in such specific terms as to enable the accused to be fully informed of the nature of the crime with which he was charged. Nor can there be any doubt that the charge is stated with such precision that the accused could plead his acquittal or conviction to any subsequent indictment based on the same facts.

Nor was it necessary that the indictment name any person or coconspirator with whom the defendant was alleged to have conspired.

In State v. Ameker, 73 S.C. 330, 53 S.E. 484, 487, the court approved the following definition of conspiracy as, 'The combination of two or more persons to do something unlawful, either as a means or as an ultimate end'. And in State v. Davis, 88 S.C. 229, 70 S.E. 811, 812, 34 L.R.A.,N.S., 295, it is stated: 'Conspiracy, therefore, is rather described than definied, and the description which seems to have the widest recognition and approval by the authorities declare a criminal conspiracy to consist of a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object, or an object neither criminal nor unlawful by criminal or unlawful means.'

While two or more persons must combine to constitute a conspiracy, the weight of authority is against the contention of appellant that it is essential that one or more coconspirators must be named in the indictment. The question here presented has been definitely answered against the appellant in many cases which hold that the identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, 19 A.L.R.2d 378; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; People v. MacMullen, 134 Cal.App. 81, 24 P.2d 794; 11 Am.Jur. Sec. 27, Page 561, 562; 15 C.J.S., Conspiracy, § 37, p. 1060; § 82, p. 1115.

An analogous case in our reports, is State v. Sauls, 70 S.C. 393, 50 S.E. 17, 18. In that case the court stated: 'While it requires the combined action of at least three persons to constitute the crime of riot, it has never been doubted that one of such persons may be indicted separately; the indictment stating the names of the others, or alleging them to be unknown.'

Prosecution for the crime of conspiracy was involved in State v. Jackson, 7 S.C. 283, 24 Am.Rep. 476, which is relied upon by appellant. It was therein state that, 'The term 'conspiracy,' according to the books, implies a combination between two or more to do either an unlawful act or to accomplish by unlawful means a legal end. The concurring will of at least two persons is as necessary to the offense as that of three to the constitution of a riot. * * * If all the defendants charged in an indictment for conspiracy are acquitted but one, unless the offense is alleged to have been committed with others unknown, from the very nature of the execution the verdict against that one could not be permitted to stand.' (Emphasis added.)

A reading and consideration of the Jackson case does not support appellant's position that where one is charged in an indictment with conspiracy, the coconspirator must be named. And see State v. Brazil, Rice 257, 24 S.C.L. 257.

Error is assigned because the trial court overruled appellant's motion for a directed verdict of not guilty, made on the ground that the State had failed to produce sufficient evidence to prove that the alleged conspiracy was entered into in Edgefield County as charged in the indictment. Therefore, it is argued, the court lacked jurisdiction to try the case in that county.

An examination of the indictment and a consideration of the evidence offered at the trial will, in our opinion, disclose that the exceptions raising this issue are without merit.

The teacher, Minerva Dow, named in the indictment, testified, without contradiction, that the personally met the appellant in the town of Edgefield about two weeks prior to the day of the examination and arranged to obtain from him the 'Key' of answers to questions to be given on the examination; and that by agreement then made, she later went to his home in Aiken County the night before the examination,--that is, on February 18, 19--and obtained this key from him, for which she paid him $10.

It was not necessary for the State to prove that the alleged conspiracy was entered into in Edgefield County. The rule is generally recognized that if the overt act is committed within the court's jurisdiction, the place of the conspiracy is immaterial. 15 C.J.S., Conspiracy, § 43, p. 1070.

It was held in State v. McAdams, 167 S.C. 405, 166 S.E. 405, that it is proper to allege both conspiracy and overt acts in an indictment so as to enable the State to Prosecute in the county where such overt acts are committed. It was held in that case that the venue in an indictment for conspiracy may be laid in the county in which the agreement was entered into, or in any county in which an overt act was done by any of the conspirators in furtherance of their common design. For example, if the conspiracy be formed at sea, the venue may be laid in any county in which an overt act was committed by one of the conspirators on land. People v. Mather, 4 Wend., N.Y., 299, 21 Am.Dec. 122. The fact that the operations take place in various states, as the necessities of the conspirators may require, does not affect the jurisdiction of the state in which any or all of them reside, since 'otherwise the offense would be committed with impunity.' Bloomer v. State, 48 Md. 521. And see Annotation, 3 Am.St.Rep. 473, 482.

In State v. Quick, 199 S.C. 256, 19 S.E.2d 101, 102, the general rule was stated that the law does not concern itself with mere guilty intention unconnected with any overt act; that no definite rule as to what constitutes an overt act can safely be shown, each case being dependent on its own particular facts. The court further said: 'It is well settled that the 'act' is to be liberally construed, and in numerous cases it is said to be sufficient that the act go far enough toward accomplishment of the crime to amount to the commencement of its consummation.'

To the same effect are State v. Jackson, 210 S.C. 214, 42 S.E.2d 230, and State v. Reaves, 203 S.C. 501, 28 S.E.2d 91; 22 C.J.S., Criminal Law, § 75, pp. 140, 141.

We think there can be no doubt that the evidence strongly tends to show not only an intention on the part of appellant to engage in the conspiracy, but that he was clearly engaged in one of the initial steps involved in the conspiracy, and in furtherance of the common design, when he agreed to furnish the key to Minerva Dow.

As stated in 15 C.J.S., Conspiracy, § 83, p. 1116, 'Where overt acts have been committed in...