State v. Phillips, 509

• Decision Date: 09 July 1954
• Docket Number: No. 509,509
• Citation: 240 N.C. 516,82 S.E.2d 762
• Parties: STATE, v. PHILLIPS et al.
• Court: North Carolina Supreme Court

Page 762

82 S.E.2d 762

240 N.C. 516

STATE, v. PHILLIPS et al.

No. 509

Supreme Court of North Carolina.

July 9, 1954

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Claude L. Love for the State.

Verne E. Shive, Gastonia, and Max L. Childers, Mount Holly, for defendants.

BARNHILL, Chief Justice.

The following opinion was prepared and filed by ERVIN, J., prior to his resignation as a member of this Court. We adopt it with due credit to Justice Ervin for its composition and for the research required in its preparation.

The male defendant is not entitled to a reversal for insufficiency of proof upon the indictment charging him with actually obtaining money from Lynn by false pretenses. To be sure, the State's evidence shows that Lynn relied in part on the male defendant's promise to do something, and the law declares that a promise to do something is ordinarily not sufficient to serve as a pretense, no matter how fraudulent it may be. State v. Knott, 124 N.C. 814, 32 S.E. 798. The State's evidence is ample to show, however, that the male defendant's promise was combined with his false factual representation concerning the Superintendent's supposed statement to him, and that Lynn relied in part on the false factual representation in parting with his money. As a consequence, this phase of the case falls within the purview of this rule: 'While * * * the crime is not committed by a mere false promise, a false statement of fact may become effective only by being coupled with a false promise. Where this is the case, the mere fact that the false representation of fact is accompanied by a promise does not render it innocuous or relieve it of its criminal character; the statement of fact and the promise may be considered as together constituting the false pretense and a conviction may follow, or, if the statement of fact and the promise can be separated, and prosecutor relied in part on the former, the promise may be disregarded and accused may be convicted on the statement of fact, notwithstanding he may also have relied in part on the promise and would not have yielded to the false statement alone.' 35 C.J.S. False Pretenses, § 9.

The case on appeal compels us to adjudge that the defendants are entitled to a reversal for insufficiency of proof upon the indictment charging them with conspiring to obtain money from Lynn by false pretenses. For this reason, we omit discussion of the question whether the statutes liberating the wife from her merged identity with the husband have abrogated the common law rule that one spouse cannot be guilty of conspiracy with the other spouse alone. People v. Miller, 82 Cal. 107, 22 P. 934; Dalton v. People, 68 Colo. 44, 189 P. 37; Smith v. State, 48 Tex.Cr.R. 233, 89 S.W. 817; 11 Am.Jur., Conspiracy, section 7; 15 C.J.S., Conspiracy, § 36.

The Supreme Court of Indiana made these highly relevant observations in Johnson v. State, 208 Ind. 89, 194 N.E. 619, 621 'There must be an agreement or joint assent of the minds of two or more before there can be a conspiracy. Such agreement or joint assent of the minds need not be proved by direct evidence. * * * There must be, however, an agreement, and there must be such evidence to prove the agreement directly or such a state of facts that an agreement may be legally inferred. Conspiracies cannot be established by a mere suspicion, nor does evidence of mere relationship between the parties or association show a conspiracy.' See, also, in this connection: 15 C.J.S., Conspiracy, § 93.

The State did not produce a scintilla of direct evidence that Lillie Phillips entered into an agreement with her husband to obtain money from Lynn by false pretenses. The circumstantial evidence invoked by the State on this aspect of the case may beget suspicion in imaginative minds. It does no more. The association between the defendants about the time named in the indictments was normal for persons living in the marital state. We cannot assign such association any probative value without subscribing to the doctrine that husband and wife must dwell in a state of separation to escape legal accountability for each other's transgressions. This we are unwilling to do. The mere subsequent possession by a wife of a portion of the proceeds of her husband's crime does not suffice to establish a prior agreement between them to commit the crime. Indeed, such circumstance is insufficient in law and logic even to charge the wife with guilty knowledge of how the proceeds were obtained. State v. Larkin, 229 N.C. 126, 47 S.E.2d 697; State v. Yow, 227 N.C. 585, 42 S.E.2d 661; State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814; State v. Lowe, 204 N.C. 572, 169 S.E. 180. The State's evidence indicated that the feme defendant made her statement to Lynn and acquired her possession of a portion of the money in question after the male defendant had practised the alleged pretenses upon Lynn. In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime. Morris v. State, 146 Ala. 66, 41 So. 274.

This brings us to the question whether the male defendant is entitled to a new trial upon the indictment charging him with actually obtaining money from Lynn by false pretenses on account of improper conduct on the part of the solicitor.

Prosecuting attorneys are in a very peculiar sense servants of the law. State v. Gorman, 219 Minn. 162, 17 N.W.2d 42. They owe the duty to the State which they represent, the accused whom they prosecute, and the cause of justice which they serve to observe the rules of practice created by law to give those tried for crime the safeguards of a fair trial. State v. Eagle, 233 N.C. 218, 63 S.E.2d 170; United States ex rel. Darcy v. Handy, 3 Cir., 203 F.2d 407; State v. Grillo, 11 N.J. 173, 93 A.2d 328; State v. Bealin, 201 S.C. 490, 23 S.E.2d 746; State v. Murphy, 92 Utah 382, 68 P.2d 188; Wilson v. Commonwealth, 157 Va. 962, 162 S.E. 15; State v. Seckman, 124 W.Va. 740, 22 S.E.2d 374.

Counsel for the defense assert that the solicitor purposely and persistently violated his duty in this respect in his cross-examination of the male defendant and his witnesses, and in that way nullified the male defendant's right to a fair trial.

The solicitor put these questions to the defendant Carl Phillips over his objection on cross-examination: (1) 'I'll ask you if you didn't break in the post office at Lowell and procure Robert Phillips to go and tell the Federal authorities that he saw Leon Phillips break into the Post Office and to get you out of trouble?' (2) 'What did you do with the police radio off of that police car or jeep down at Lowell?' (3) 'What other property of the Town of Lowell did you carry off?' (4) 'You were willing to pay a good bit to get out there and take money off the people?' (5) 'You remember the colored man down in Lowell. You found a shotgun in his house and took $125.00 off of him?' (6) 'When you were police chief down in the Town of Lowell, did you take a boy's car away from him that you caught speeding and refuse to turn it over to him? You remember taking that boy's car away from him?' (7) 'Well now, I'll ask you if you don't know that on July 15, 1950, if you didn't take from a boy by the name of Jack Shields the sum of $125.00 and take the money and tell him you were going to give it to the mayor down there to pay his fine when you had arrested him for driving under the influence?' (8) 'And if you didn't keep that money and failed to turn it in?' (9) 'I'll ask you if you don't remember telling Jack Shields, when he came to see about the matter, after he had paid you the $125.00, that it wouldn't be necessary for him to see the mayor, that you had already talked with him and the mayor said it was all right to reduce the charge to reckless driving and driving with improper brakes and he could pay you the sum of $125.00, that you told him he didn't have to come to court, and if you don't know you didn't turn the money into the mayor?' (10) 'How many people do you reckon you have cheated out of their money in your lifetime?' (11) 'This is not the first old man you have beaten out of money, is it?' (12) 'I say you made it a practice for several years of getting folks and taking them over there and taking money away from them?' (13) 'Do you deny you cheated an old woman in Stanley out of $3,000.00?' (14) 'How much money did you take off of Sam Gillespie?' (15) 'I'll ask you if you didn't enter a suit against a warehouse company you were working for and allege you had hurt yourself lifting a sack or dropping a sack when you knew you hadn't?' (16) 'Phillips, how many folks do you owe money around here?' (17) 'I'll ask you if you don't know this brother you got the money from has been convicted in Federal Court with you for conspiracy, and if he hasn't been convicted in this court for being a fence for stolen property?'

The presiding judge sustained the objections to the tenth, sixteenth, and the seventeenth questions, and the male defendant denied all the insinuations incorporated in the other fourteen questions. The first nine questions were concerned with the period of the male defendant's service as a policeman, and the last question related to the male defendant's brother Mack Phillips, who had no connection with the case beyond the bare fact that he allegedly supplied the male defendant with money to pay the premium on his appearance bond.

When he phrased the seventeen questions under scrutiny and propounded them to the male defendant, the solicitor assumed the unproved insinuations in them to be facts, and in that way assured the jury upon his official authority that the male defendant had burglarized a Post Office, suborned the commission of perjury, committed thefts, asked and received bribes, practiced extortion, and embezzled public moneys while serving as a policeman; that the male defendant had cheated and defrauded many persons of their moneys; that the male defendant had...