State v. Horton, 6922SC147

• Decision Date: 18 June 1969
• Docket Number: No. 6922SC147,6922SC147
• Citation: 5 N.C.App. 141,167 S.E.2d 871
• Parties: STATE of North Carolina v. Margaret Ruth HORTON.
• Court: North Carolina Court of Appeals

Page 871

167 S.E.2d 871

5 N.C.App. 141

STATE of North Carolina v. Margaret Ruth HORTON.

No. 6922SC147.

Court of Appeals of North Carolina.

June 18, 1969.

Certiorari Allowed July 11, 1969.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. James F. Bullock, for the State.

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

BRITT, Judge.

Defendant first assigns as error the failure of the trial court to grant her motion for judgment as of nonsuit.

It is well settled that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State; and when so considered, if there is more than a scintilla of competent evidence to support the allegations in the warrant or bill of indictment, it is the duty of the court to overrule the motion and to submit the case to the jury. Moreover, on such motion, the State is entitled to the benefit of every reasonable inference which may be fairly drawn from the evidence. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Gordon, 225 N.C. 757, 36 S.E.2d 143; State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473; State v. Herndon, 223 N.C. 208, 25 S.E.2d 611.

In State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505, in an opinion by Higgins, J., it is said: "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.2d (sic) 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.'

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. Gallimore, Supra.

Defendant strenuously contends that the State's case depended primarily upon the testimony of Robert Lee James and Carl Deal, they being named in the indictment as defendant's co-conspirators; that the testimony of James and Deal negatived the creation of a conspiracy. Specifically, defendant refers to their testimony to the effect that at no time did either of them intend to kill defendant's husband, their only purpose being to get money from the defendant.

Conceding that a large part of the testimony given by James and Deal was exculpatory, the fact remains that from their testimony there could be gleaned 'more than a scintilla' of evidence to support the allegations in the bill of indictment. When James talked with Deal over the telephone soon after defendant first contacted James, James told Deal that there was a woman in Statesville that wanted to get her husband killed. Thereafter, defendant...