State v. Moore

• Decision Date: 19 April 1933
• Docket Number: 273.
• Citation: 168 S.E. 842,204 N.C. 545
• Parties: STATE v. MOORE et al.
• Court: North Carolina Supreme Court

168 S.E. 842

204 N.C. 545

STATE v. MOORE et al.

No. 273.

Supreme Court of North Carolina

April 19, 1933

Appeal from Superior Court, New Hanover County; Devin, Judge.

P. Q Moore and J. J. Furlong were convicted of blackmail, and they appeal.

No error.

Indictment may be quashed on motion made in apt time where all testimony heard by grand jury was incompetent or all witnesses were disqualified, but not where only some evidence was incompetent, and some witnesses were disqualified.

At September term, 1932, of the superior court of New Hanover county, a bill of indictment in words as follows was returned by the grand jury as a true bill:

"State of North Carolina, County of New Hanover

"Superior Court, September Term, 1932.

"The jurors for the State upon their oath present, that P. Q Moore and John J. Furlong, late of the County of New Hanover, on the 30th day of May, 1932, both before, and since said date, with force and arms, at and in the county aforesaid, did unlawfully and wilfully and feloniously, secretly and in malice, with intent to deceive and to defraud without probable cause or excuse, knowingly send, or cause to be delivered, through the U.S. mail, to Mrs. J. K. Wise, Wilmington, N. C., two certain letters, one dated May 30, 1932, and the other June 9, 1932, containing menaces demanding that the said Mrs. J. K. Wise, in the first deposit the sum of $25,000.00, and in the second letter the sum of $20,000.00, at a designated filling station, threatening death or serious bodily harm to herself and other members of her family, all with the intent to extort or gain from the said Mrs. J. K. Wise, the said sums of money, against the form of the statute in such case made and provided, and against the peace and dignity of the State.

"And the Jurors for the State, upon their oath, do further present: That on said days and at said dates, in said county and State, with force and arms, the said P. Q. Moore and John J. Furlong, and others unknown to the jurors, did unlawfully and wilfully and feloniously combine, confederate, conspire and agree, each with the other, secretly and in malice, with intent to deceive and to defraud, without probable cause or reasonable excuse, and in furtherance and confirmation thereof, on the 30th day of May, 1932, and on the 9th day of June, 1932, knowingly send or cause to be sent and delivered through the U.S. Mails to Mrs. J. K. Wise, Wilmington, N. C., two certain letters containing menaces demanding that the said Mrs. J. K. Wise, in the first letter deposit the sum of $25,000.00, and in the second letter the sum of $20,000.00, at a designated filling station, threatening death or serious bodily harm to herself and other members of her family, all with intent to extort or gain from the said Mrs. J. K. Wise, the said sums of money, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

On the back of this bill of indictment there were endorsed the names of thirty-four persons as witnesses for the State. A check against each of these names indicated, as shown by an endorsement by the Foreman of the Grand Jury, that each of these witnesses had been sworn by the Foreman and had testified before the Grand Jury.

"Before the indictment was read, and before the defendants or either or them had otherwise plead thereto, and before the jury had been selected and empanelled for the trial of the action, the defendant, P. Q. Moore, who was present in Court, filed his plea in abatement, and motion to quash the indictment, which was in writing and is as follows:

"Now comes the defendant, P. Q. Moore, through his counsel, L. Clayton Grant and Aaron Goldberg, and moves the Court that he be permitted to file his plea in bar before pleading, and to have the same disposed of according to law, that is:

"This defendant, P. Q. Moore, avers that the bill of indictment in this cause returned by the Grand Jury was, according to his information and belief, obtained by the reading before said Grand Jury while considering

said bill, the stenographic notes as transcribed and read by the Court Reporter of the testimony of John J. Furlong, co-defendant of the said P. Q. Moore, before Honorable H. A. Grady, Judge sitting as a Committing Magistrate on the preliminary hearing of this cause.

"Wherefore, this defendant avers that the bill of indictment was obtained by improper and incompetent testimony, and that being predicated upon incompetent testimony as aforesaid, that such fact does bar the further prosecution under said bill of indictment, and that this plea is a complete bar to this action.

"Wherefore, the defendant, P. Q. Moore, prays that this plea be accepted and adjudged a bar to further prosecution of this cause under said indictment."

The motion was overruled, and the defendant excepted.

Before the indictment was read, and before the defendants or either of them had otherwise pleaded thereto, and before the jury had been selected and impaneled for the trial of the action, the defendant John J. Furlong, who was present in court, filed his plea in abatement, and motion to quash the indictment, which was in writing and is as follows:

"Now comes the defendant, John J. Furlong, and through his counsel, Herbert McClammy and John A. Stevens, offers this plea in abatement, and moves the Court to quash the indictment in this action, upon the following grounds:

"1. That the bill of indictment in this cause was found upon incompetent and disqualified testimony, to-wit:

"The declaration of John J. Furlong given at the hearing before Honorable Henry A. Grady, sitting as Committing Magistrate, and stated before the Grand Jury by Dwight McEwen, Court stenographer.

"2. And defendant further submits to this Honorable Court that under the law of North Carolina, where there are two defendants on trial, a bill of indictment can not be bound by the testimony of one of the defendants against the other, and that this principle is especially applicable to a case like this when the testimony of one defendant is recited by a stenographer who took the notes of such testimony."

The motion was overruled, and the defendant excepted.

After the pleas and motions of the defendants had been overruled, the court, at the request of counsel for each of the defendants, directed Dwight McEwen, the court reporter, to furnish to counsel for the record a statement of what transpired before the grand jury, while he was present as a witness for the state. This statement appears in the record, and is as follows:

"While I was testifying before the Grand Jury as a witness for the State in this action, I was asked if I had the testimony of Mr. J. J. Furlong, taken before His Honor, Henry A. Grady Judge, sitting as a magistrate, in the preliminary hearing. I replied that Mr. Furlong, upon the advice of his counsel voluntarily tendered himself for examination by the Solicitor, and that the transcript which I then held in my hands, was a true and accurate transcript of Mr. Furlong's testimony given at the preliminary hearing, under oath, and by me personally transcribed. I was asked whether or not it was admissible as evidence. I replied that I was a witness before the Grand Jury under a sub-poena,...