State v. Smith

• Decision Date: 05 June 1942
• Docket Number: 650.
• Citation: 20 S.E.2d 360,221 N.C. 400
• Parties: STATE v. SMITH et al.
• Court: North Carolina Supreme Court

20 S.E.2d 360

221 N.C. 400

STATE v. SMITH et al.

No. 650.

Supreme Court of North Carolina

June 5, 1942

Criminal prosecutions tried upon indictments (1) charging the defendants, W. H. Smith, Avery Gunter, H. B. Lipscomb, J.

R Bull, Otis Kessler and six others, in one bill, with conspiracy feloniously to burn and with burning a certain Mack tractor and trailer, the property of G. and M. Motor Transportation Company of the value of $4,000 and a cargo of merchandise on said trailer at the time, the property of Larasista Corset Company and another, of the value of $8,534.16, (2) charging the above named defendants and five others, in a second bill, with the felonious burning of the tractor, trailer and cargo as described, and (3) charging the above named defendants and four others, in a third bill, with armed felonious robbery, from the drivers, of the tractor trailer and cargo as described, all against the forms of the statutes in such cases made and provided and against the peace and dignity of the State.

Without objection, the indictments were consolidated and tried together as they all arose out of the same transaction, or series of transactions, leading to a single end. State v Malpass, 189 N.C. 349, 127 S.E. 248.

At the time in question a strike was in progress among the drivers of the G. and M. Motor Transportation Company of Statesville, N. C. The following are mentioned in the record as officers of the truck drivers' union: S. M. Keyser, head of the union; J. R. Bull, shop steward; W. H. Smith, dues collector. Under the leadership of these officers, the truck drivers were engaged in picketing the office of the company in Statesville, the purpose being to prevent the company from operating its trucks until the demands of the drivers were met or satisfied. The strike was only partially effective.

On Saturday night, June 21, 1941, about 10 or 11 P.M., two drivers, Howard Brown and Bristol Ayers, left Statesville with a G. and M. tractor and trailer loaded with a cargo of merchandise destined for Providence, R. I. When they reached Mack's Place, about 4 miles from Winston-Salem, they stopped for a midnight lunch. Here, they saw about a dozen automobiles and observed a number of people, "some dressed like a truck driver would be". Ayers said to Brown "Let's go, two of them are Harris drivers and they might call Charlotte and we might have trouble". On leaving Mack's Place, Ayers got in the sleeper and Brown was driving. They were stopped near Stokesdale, approximately one-half mile over the Guilford County line, about 1:15 A.M., held up with pistols by a number of men who were traveling in three automobiles. The tractor, trailer and cargo were taken from them, driven some distance and later set on fire and destroyed.

Howard Brown testified: "One car pulled up to the side of the trailer and shot down my left rear tractor outside tire. I stopped on the shoulder of the road. *** They told us to get out and sit on the embankment. *** There was a crowd there, in my opinion approximately ten. *** I saw two pistols. *** We were then told to get in one of the cars. *** I don't believe anything was said until we got to Stokesdale. *** We turned around and came back and stopped in front of the tractor and trailer. *** Two of the men got out and shot holes through the two tanks, and one struck a match and threw it in gasoline on the ground. It started blazing up and they came back and jumped in the car and started on up the road. There was some discussion about what was to be done with me and Ayers--where we were to be taken. *** Some one said they had seen us at Mack's Place. *** We were finally taken to the city limits of Greensboro. *** They said to keep quiet; to tell that it was a Plymouth instead of a Ford; and they said the union would take care of us. *** We were told not to tell that we recognized anyone. *** These boys said for us to keep quiet and the union would take care of us. We agreed to do so." The witness said he did not tell the whole story at first and disclaimed recognizing anyone, because he "didn't want the union to find out about me telling it".

Bristol Ayers testified that he had talked with Smith and Gunter on several occasions during the time they were picketing the G. and M.; that the conversations centered around the strike and joining the union; that he did join the union three weeks before the truck was burned; that he is not a member now.

On July 16, 1941, J. R. Bull, one of the defendants, signed a confession in writing, in which he stated that at the instance of Keyser, he and others went out "to stop this G. & M. Motor Company truck". Q. "Was anything said about shooting the tires or burning this truck?" A. "No, just stop it".

On being asked whether he joined in any conversation at the scene of the holdup, he answered, "No, nothing more than to say they shot the tires".

"Q. Who told you to leave? A. They were at the back of the truck and said go ahead.

"Q. Who told you to go ahead? A. Gunter or Smith said it. I went up the road and picked up the men". He named Smith, Gunter, Lipscomb, Kessler and others as being in the crowd that night. They left Charlotte in four automobiles and overtook the truck near Stokesdale.

The defendants, Lipscomb and Kessler, said the statement signed by Bull was true and that they wanted to sign it. The statement was admitted as against the defendants, Bull, Lipscomb and Kessler.

The driver of the truck testified that he recognized the defendant Smith at the scene of the holdup.

At about 6:00 or 6:30 P. M., June 21, 1941, S. M. Keyser had four cars serviced at the Truckers' Terminal in Charlotte. One of them was Avery Gunter's car. The defendants, Gunter and Smith, were there at the time. An employee of the Terminal testified: "I put about 50 gallons in the four cars. *** He (Keyser) simply said to me to fill up the four cars, and he would pay for the gas, and after he left not to tell anybody where he had gone."

It is in evidence that the defendant Gunter borrowed a pistol from E. R. Caldwell "sometime during the past year", which had a rusty spot on the side where the thumb rests. He had not returned it at the time of the trial. It was identified by the witness. When Gunter was arrested, the pistol was found in his house.

At the close of the State's evidence the defendants, and each of them, demurred and moved for judgment of nonsuit on each and every count in each and every bill of indictment. Overruled as to each and all of the above named defendants. Exceptions. The defendants offered no evidence.

(The actions were dismissed as to the defendants, H. J. Elmore, Jr., Kelly Watts and Ralph Barton. Order of abatement was entered as to the defendant, S. M. Keyser, who had died before the case was called for trial. Since the trial and pending the appeal, the defendant, C. R. Wallace, has died.)

Verdict: Guilty as to each defendant on each charge in each bill of indictment.

Judgments as to each defendant: Imprisonment in the State's Prison for a period of not less than 6 nor more than 9 years, (1) on the bill charging conspiracy, the same as to each defendant, (2) on the bill for burning the truck, to run concurrently with the sentence on the bill charging conspiracy, and the same as to each defendant, (3) on the bill charging armed robbery, to run concurrently with the sentence on the bill charging conspiracy.

The above named defendants appeal, assigning errors.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton, Asst. Attys. Gen., for the State.

Wm. H. Abernathy and A. A. Tarlton, both of Charlotte, for defendants.

STACY Chief Justice.

The record contains 116 assignments of error based on 125 exceptions. Obviously they cannot be treated separately in an opinion without extending it to a "burdensome and intolerable length". State v. Lea, 203 N.C. 13, 164 S.E. 737. However, none has been overlooked; all have been duly examined and considered. The principal reasons inducing our conclusions on the main exceptions follow:

I. The defendants challenge the sufficiency of the evidence to warrant a conviction on the indictment charging a conspiracy to burn the property as described, it appearing from the confessions, offered by the State, that the antecedent arrangement among the defendants was to "go out and stop the truck", not to burn it. State v. Trammell, 24 N.C. 379. This, they say, is binding on the prosecution, State v. Cohoon, 206 N.C. 388, 174 S.E. 91, and constitutes a fatal variance between the indictment and the proof, or a total failure of proof. State v. Harbert, 185 N.C. 760, 118 S.E. 6; State v. Gibson, 169 N.C. 318, 85 S.E. 7; 11 Am.Jur. 567.

There are two answers to the position.

In the first place, authority may be found for the holding that where there is a conspiracy to engage in an unlawful enterprise, e.g., the forcible stopping of a truck on the highway, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any of the conspirators in the accomplishment of the purpose in which they are all engaged at the time. State v. McCahill, 72 Iowa 111, 30 N.W. 553, 33 N.W. 599; State v. Powell, 168 N.C. 134, 83 S.E. 310. If many engage in an unlawful conspiracy, to be executed in a given manner, and some of them execute it in another manner, yet their act, though different in the manner, is the act of all who conspired. State v. Bell, 205 N.C. 225, 171 S.E. 50; 1 Bishop on Crim.Law, 9 Ed., 465.

And the liability also extends to acts not intended or contemplated as a part of the original design, but which are a natural or probable consequence of the unlawful combination or undertaking. State v. Williams, 216 N.C. 446, 5 S.E.2d 314; State v....