State v. Horton, 22

• Decision Date: 19 November 1969
• Docket Number: No. 22,22
• Citation: 170 S.E.2d 466,275 N.C. 651
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Margaret Ruth HORTON.

Page 466

170 S.E.2d 466

275 N.C. 651

STATE of North Carolina v. Margaret Ruth HORTON.

No. 22.

Supreme Court of North Carolina.

Nov. 19, 1969.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. James Bullock, and Deputy Atty. Gen. Harry W. McGalliard, for the State.

F. Lee Bailey, Boston, Mass., and Gardner & Wilson (by Rossie G. Gardner and Jerry C. Wilson), High Point, for defendant.

BRANCH, Justice.

Defendant assigns as error the denial of her motions for judgment as of nonsuit and contends that she was denied due process and equal protection of the laws when the Court of Appeals failed to apply the rule that the State is bound by its uncontradicted evidence.

In State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505, this Court defined a conspiracy as follows:

"A criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme--the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means. (Citing many cases)' State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334; State v. McCullough, 244 N.C. 11, 92 S.E.2d 389. A conspiracy to commit a felony is a felony. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, 1 A.L.R.3d 1323; State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25. The crime is complete when the agreement is made.

State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Whiteside, 204 N.C. 710, 169 S.E. 711; State v. Knotts, 168 N.C. 173, 83 S.E. 972. Many jurisdictions follow the rule that one overt act must be committed before the conspiracy becomes criminal. Our rule does not require an overt act.'

Since our rule does not require an overt act, an attempted withdrawal by one of the conspirators before an overt act in furtherance of the agreement will not prevent a verdict of guilty of conspiracy. 16 Am.Jur.2d, Conspiracy, Sec. 29, at 142. Nor is it necessary for the purpose of the conspiracy to be accomplished in order for a verdict of guilty to stand. Goldman v. United States, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410. There can be no conspiracy unless there is a union of wills, and if only one person feigns acquiescence in a proposal of another to pursue an unlawful enterprise, there is no conspiracy. One person cannot conspire with himself. State v. Tom, 13 N.C. 569; 15 A C.J.S. Conspiracy § 37, p. 730. However, if three or more conspire to commit a crime, the fact that there is a union of purpose between only two will not bar a prosecution and conviction of the two. 15A C.J.S. Conspiracy § 37, p. 731. The unsupported testimony of a co-conspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution. State v. Tilley, 239 N.C. 245, 79 S.E.2d 473.

The rule relating to sufficiency of evidence to carry a case to the jury is concisely stated in the case of State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. We quote therefrom:

"If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.' The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of the facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury. State v. Simpson (244 N.C. 325, 93 S.E.2d 425); State v. Duncan (244 N.C. 374, 93 S.E.2d 42); State v. Simmons, supra (240 N.C. 780, 83 S.E.2d 904); State v. Grainger, 238 N.C. 739, 78 S.E.2d 769; State v. Fulk, 232 N.C. 118, 59 S.E.2d 617; State v. Frye, 229 N.C. 581, 50 S.E.2d 895; State v. Strickland, 229 N.C. 201, 49 S.E.2d 469; State v. Minton, 228 N.C. 518, 46 S.E.2d 296; State v. Coffey, 228 N.C. 119, 44 S.E.2d 886; State v. Harvey, 228 N.C. 62, 44 S.E.2d 472; State v. Ewing, 227 N.C. 535, 42 S.E.2d 676; State v. Stiwinter, 211 N.C. 278, 189 S.E. 868; State v. Johnson, supra (199 N.C. 429, 154 S.E. 730).'

In the instant case the decision must stand or fall upon the testimony of two alleged co-conspirators who, in the course of their testimony when offered as State's witnesses, testified as to the circumstances surrounding the alleged conspiracy, and in their further testimony stated that they never intended to harm defendant's husband. Defendant contends that the State, offering them as its witnesses and worthy of belief, has made out a complete defense entitling defendant to nonsuit. The State, on the other hand, contends that the testimony of the alleged co-conspirators shows such circumstances and conduct as to carry the question of defendant's guilt to the jury.

It is well established in this jurisdiction that a party cannot introduce testimony to impeach or discredit the character of his witness, and when in a criminal action a complete defense is established by the State's evidence, a defendant may avail himself of such defense by a motion for judgment as of nonsuit. Yet, if the witness testifies to facts against the State's contentions, the State is not precluded from showing the facts to be other than as testified to by the witness. State v. Jarrell, 233 N.C. 741, 65 S.E.2d 304; State v. Todd, 222 N.C. 346, 23 S.E.2d 47; State v. Cohoon, 206 N.C. 388, 174 S.E. 91; Smith v. R.R., 147 N.C. 603, 61 S.E. 575. It is equally well established that when the substantive evidence offered by the State is conflicting--some tending to inculpate and some tending to exculpate the defendant--it is sufficient to overrule a motion for judgment as of nonsuit. State v. Mitchum, 258 N.C. 337, 128 S.E.2d 665; State v. Bass, 255 N.C. 42, 120 S.E.2d 580, 86 A.L.R.2d 259; State v. Mangum, 245 N.C. 323, 96 S.E.2d 39; State v. Tolbert, 240 N.C. 445, 82 S.E.2d 201.

It must be borne in mind that the State offered no evidence to impeach the testimony of its witnesses except for questions as to the past record of the witness James, which were asked and answered without objection. The State vouched that witnesses were worthy of belief as to All of their testimony, and where there was conflict in the testimony, it was for the jury to believe all the testimony or to believe a part and reject a part, or to reject it all, because it is the trier of the facts. Brown v. Brown, 264 N.C. 485, 141 S.E.2d 875; State v. Mangum, supra; State v. Henderson, 180 N.C. 735, 105 S.E. 339; State v. Ellis, 97 N.C. 447, 2 S.E. 525; State v. Overton, 75 N.C. 200.

In the case of Smith v. R.R., supra, we find the following:

'While it is accepted doctrine that one who offers a witness 'presents him as worthy of belief,' and except, perhaps, where an examination is required by the law, as in the cases of subscribing witness to wills and deeds * * * a party will not be allowed to disparage the character or impeach the veracity of his own witness, nor to ask questions or offer evidence which has only these purposes in view, it is always open to a litigant to show that the facts are otherwise than as testified to by his witness * * * And this he may do, not only by the testimony of other witnesses, but from other statements of the same witness, and at times by the facts and attending circumstances of the occurrence itself, the res gestae.' (Emphasis ours)

The above was quoted with approval in the case of State v. Cohoon, supra. See also Worth Co. v. Feed Co., 172 N.C. 335, 90 S.E. 295.

Defendant relies on the case of Odneal v. State, 117 Tex.Cr.R. 97, 34 S.W.2d 595, where an accomplice testified on direct examination that he had entered into a conspiracy with the defendant and testified on cross-examination that he never intended to carry out the agreement. The court submitted this case to the jury on the basis of conflict in the testimony requiring the jury to decide whether the witness intended to carry out the conspiracy.

Defendant contends that Odneal v. State, supra, is distinguishable from the instant case because here witnesses only testified as to what they were paid to do on direct examination, and testified on cross-examination that they never intended to do it. The fallacy in defendant's argument is that a criminal conspiracy may be established by circumstantial evidence from which the conspiracy may be legitimately inferred. State v. Butler, 269 N.C. 733, 153 S.E.2d 477. The validity of the type of evidence here relied upon by the State was recognized in the case of State v. Whiteside, 204 N.C. 710, 169 S.E. 711. There, the defendants Whiteside and Cannon were charged with conspiracy to rob the Imperial Theatre in Asheville, North Carolina. Defendant Whiteside pleaded guilty; defendant...