State v. Smith

• Decision Date: 30 January 1953
• Docket Number: No. 652,652
• Citation: 74 S.E.2d 291,237 N.C. 1
• Parties: STATE, v. SMITH et al.
• Court: North Carolina Supreme Court

Page 291

74 S.E.2d 291

237 N.C. 1

STATE, v. SMITH et al.

No. 652

Supreme Court of North Carolina.

Jan. 30, 1953

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Jordan & Wright, Hines & Boren, Greensboro, and Don A. Walser, Lexington, for the defendant Francis Duval Smith, alias George Smith.

T. Glenn Henderson and Norman A. Boren, Greensboro, for the defendants R. L. Ferrell, R. L. Paschal, F. B. Money and J. H. Adams.

PARKER, Justice.

At the close of the evidence for the state, the defendant Smith moved for judgment of nonsuit on counts 1 through 10, inclusive, in the bill of indictment; and as to each of said counts. The motion was refused as to all said counts, and the defendant Smith excepted. The defendant Smith introduced no evidence. The other four defendants did introduce evidence. After all the evidence in the case had been concluded, the defendant Smith again moved for judgment of nonsuit on counts 1 to 10, inclusive, and on each one of them. The motion was refused and the defendant Smith excepted. However, in his brief the 'defendant Smith concedes that the state's evidence, when viewed in the light most favorable to the state, was sufficient to repel the motions for judgment as of nonsuit upon counts 2, 3, 4, 5, 7 and 9. Hence, the exceptions to the overruling of the demurrer to the evidence and motions for judgment as of nonsuit on these counts are abandoned. On the other hand, it is submitted that the evidence was insufficient to be submitted to the jury upon counts 1, 6, 8 and 10. We can perceive that there might be some difference of opinion as to counts 6, 8 and 10, although we believe the conviction on these counts should be set aside and reversed. ' Without repeating the evidence on counts 6, 8 and 10, set forth above, it was amply sufficient to overcome the defendant Smith's motion for judgment of nonsuit.

At the close of the state's evidence the defendant Paschal moved for judgment of nonsuit upon counts 1, 11, 12 and 13; overruled and Paschal excepts.

At the close of the state's evidence the defendant Ferrell moved for judgment of nonsuit upon counts 1, 14 and 15; overruled and Ferrell excepts.

At the close of the state's evidence the defendant Adams moved for judgment of nonsuit upon counts 1, 16 and 17; overruled and Adams excepts.

At the close of the state's evidence the defendant Money moved for judgment of nonsuit upon counts 1, 18 and 19; overruled and Money excepts.

At the close of all the evidence the defendants Paschal, Ferrell, Adams and Money renewed their motions for judgment of nonsuit; overruled and exception by all four defendants.

Paschal, Ferrell, Money and Adams filed with us a joint brief. Their brief states: 'The defendant policemen concede that there was sufficient evidence to submit to the jury on the alleged overt acts of receiving bribes, as charged in counts 11 through 19, inclusive, of the bill of indictment, if the otherwise uncorroborated testimony of two accomplices is sufficient to make out a case for the jury. However, the defendant policemen stressfully urge and contend that there was a total failure of proof sufficient to carry the case to the jury on the charge that they entered into a conspiracy with Smith, and it is submitted that the motions for judgment as of nonsuit on the conspiracy count should have been granted. ' 'It has been repeatedly held by this court that the unsupported testimony of an accomplice, while it should be received with caution, if it produces convincing proof of the defendant's guilt, is sufficient to sustain a conviction. State v. Ashburn, 187 N.C. 717, 728, 122 S.E. 833, and cases there cited.' State v. Gore, 207 N.C. 618, 178 S.E. 209, 210. To the same effect State v. Herring, 201 N.C. 543, 160 S.E. 891; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594; State v. Rising, 223 N.C. 747, 28 S.E.2d 221. Upon the admission of the four police officers defendants in their brief, their motion for nonsuit is untenable on counts eleven through nineteen, inclusive. Regardless of such admission there was plenary evidence on those counts to carry the case to the jury.

That leaves for our consideration the refusal of the trial court to nonsuit the state on Count One in the indictment as to all the defendants, or one or more of them.

'On motion to dismiss or judgment of nonsuit, the evidence is to be taken in the light most favorable to the state, and it is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. ' State v. Shipman, 202 N.C. 518, 163 S.E. 657, 660. On such a motion 'the defendant's evidence, unless favorable to the State, is not to be taken into consideration, except when not in conflict with the State's evidence, it may be used to explain or make clear that which has been offered by the State. ' State v. Bryant, 235 N.C. 420, 70 S.E.2d 186, 188. 'The general rule is that, 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. ' State v. Johnson, 199 N.C. 429, 154 S.E. 730, 731. A fatal variance between allegata et probata can be taken advantage of by motion for judgment as of nonsuit. State v. Nunley, 224 N.C. 96, 29 S.E.2d 17.

Count One charges the five defendants with a conspiracy to commit a felony. All the defendants contend that Count One of the indictment charged that a conspiracy existed between Smith on the one hand and the four defendant police officers on the other, under which Smith agreed to give bribes to the police officers in return for an agreement on their part to protect Smith's lottery operations, and that the four police officers consented to receive, and did receive bribes for said purposes. That the evidence discloses, as the defendants contend, that none of the defendant policemen knew that any of the others were the recipients of bribes, nor is there any evidence that Smith directly communicated with any of the four police officer defendants regarding the bribes. That the evidence discloses, when viewed most favorably for the state, the bribery of the policemen was an isolated incident unrelated to the bribery of the other policemen. That while there is evidence that York and Coble gave bribes to the four police officer defendants at Smith's requests and as his agents that would only be evidence of a conspiracy by Smith, York and Coble to corrupt police officers, and does not support Count One; but is a fatal variance between allegata and proof. That there is no evidence from which it could be found that any systematic scheme or plan was either evolved or carried into effect with the defendant policemen to protect Smith's lottery operations.

It is not requisite to convict for the state to prove that the police officer defendants, or any one of them, knew that the others, or any of them, were the recipient of bribes. 'It is not necessary, however, that a person to be criminally liable, be acquainted with the others engaged in the conspiracy; although to hold one liable as a participant, it must be shown that he did some act or made some agreement showing his intention to be a participant:' 11 Am.Jur., Conspiracy, Sec. 7. 'It is not necessary to constitute the offense that the parties should have come together and agreed in express terms to unite for a common object. A mutual, implied, understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense. ' State v. Connor, 179 N.C. 752, 103 S.E. 79, 80. However, there is evidence that Ferrell told Coble 'I understand some of the other policemen are getting whiskey, groceries and cars. It looks like you could give me a few groceries. ' There is further evidence that Smith made the payments on a car for Paschal.

The defendants contend there is no evidence that Smith directly communicated with any of the police officer defendants regarding bribes. That is an oversight. There is evidence that Paschal told Coble, Smith had offered him a car if he would knock out opposition bankers; that he had done the job, and he had not come across with the car. Coble reported this to Smith. A day or two later Paschal met Smith at Coble's store, and Paschal and Smith went out of the store for 20 or 30 minutes. When they came back Smith told Coble he had straightened it out; that he was going to buy the car, and make the payments, which he did.

The evidence discloses that York and Coble in dealing with the four police officer defendants were acting under Smith's direction and as his agents. Smith said he could not operate successfully without police protection, and to give money, whiskey, groceries and a car (the car was to Paschal alone) to these four defendants, and that they received what he directed to be given. That they never arrested Smith, York or Coble in their lottery operations. That Paschal knocked out opposition bankers. That Ferrell told Coble 'last night I overlooked two down there, it would have cost you more than what these few groceries I got cost. ' That Adams would come in Coble's store kidding about the numbers, and say 'what kind of day did you have? Were you overhit, or did you make money? ' Then Adams would say 'what about a bottle or two,' and Coble would give him whiskey. Money told Coble during 1947 and 1948 he could have arrested him several times, when he was taking 'the low' down over the telephone. Smith told York for years that Money was all right, and wouldn't bother the operations, unless he had to do so; that he need not be afraid of Adams, as he was his man; and made the same statements as to Paschal and Ferrell. What Smith told York was admitted against Smith only.

Considering all these facts and circumstances in the light most favorable to the state there was...