State v. Summerlin, 219

• Decision Date: 07 July 1950
• Docket Number: No. 219,219
• Citation: 60 S.E.2d 322,232 N.C. 333
• Parties: STATE, v. SUMMERLIN.
• Court: North Carolina Supreme Court

Page 322

60 S.E.2d 322

232 N.C. 333

STATE, v. SUMMERLIN.

No. 219.

Supreme Court of North Carolina.

July 7, 1950.

Attorney General Harry McMullan and Assistant Attorney General Ralph Moody for the State.

J. Faison Thomson, Paul B. Edmundson and N. W. Ooutlaw, all of Goldsboro, for defendant Summerlin.

DENNY, Justice.

The appealing defendant entered 16 exceptions to the admission of evidence bearing on the plans agreed upon by all the alleged conspirators to rob a gambling place at Snow Hill, and the reason why the plans were changed on the morning of November 9th, when it was agreed to rob the gamblers at the 'Hole-in-the-Wall' instead.

It appears from the evidence that Stroud went to Snow Hill on the morning of November 9th, for the purpose of looking over the situation at the place they planned to rob, and when he returned, he advised against undertaking to rob it because a fish fry or barbecue was being held at the place. After receiving this information, they decided to go to the 'Hole- in-the-Wall' and rob the participants in the gambling at that place. The defendant Summerlin was not with Hart, Stroud, Woods and Chappell when the plans were changed, and they decided to rob the gamblers at the 'Hole-in-the-Wall' in lieu of taking a chance on robbing the gambling place at Snow Hill while a fish fry or barbecue was in progress.

The appellant contends that this evidence was incompetent, as against him, because he was not present at any time during these conversations and is not charged with any offense in connection with a conspiracy to rob a place at Snow Hill.

We shall consider this evidence under the rule applicable to the admission of evidence where the State is endeavoring to prove a conspiracy.

'A '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.' State v. Whiteside, 204 N.C. 710, 169 S.E. 711, 712; State v. Lea, 203 N.C. 13, 164 S.E. 737; State v. Ritter, 197 N.C. 113, 147 S.E. 733.

It is seldom indeed that the State can show the existence of a conspiracy by direct proof as it did in this case. State v. Whitesides, supra.

It makes no difference whether Summerlin was present or not when the plans were changed. It is disclosed by the evidence that he did participate in the general plan to rob both places. Therefore, it is immaterial which place was robbed first, and all this evidence, to which the defendant objects, is so related to the plans of the alleged conspirators it was admissible. State v. Bennett, 226 N.C. 82, 36 S.E.2d 708; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Andrews, 216 N.C. 574, 6 S.E.2d 35; State v. Herndon, 211 N.C. 123, 189 S.E. 173; State v. Lea, supra. 'When a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by every one of them, and may be proved against each. It is immaterial when a defendant entered into or became a party to the conspiracy, or how prominent or inconspicuous a part he took in the execution of the unlawful purpose, he is responsible to the fullest extent for everything that is said and one pursuant to the plot.' 11 Am.Jur. 571; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Biggs, 224 N.C. 722, 32 S.E.2d 352; State v. Kelly, 216 N.C. 627, 6 S.E.2d 533; State v. Payne, 213 N.C. 719, 197 S.E. 573; State v. Smoak, 213 N.C. 79, 195 S.E. 72; State v. Batts, 210 N.C. 659, 188 S.E. 99; State v. Stancill, 178 N.C. 683, 100 S.E. 241. Stacy, C. J., speaking for the Court, said in State v. Dail, 191 N.C. 231, 131 S.E. 573: 'It is undoubtedly the general rule of law that evidence of a distinct substantive offense is inadmissible to prove another and independent crime, the two being wholly disconnected and in no way related to each other. State v. Adams, 138 N.C. 688, 50 S.E. 765; State v. McCall, 131 N.C. 798, 42 S.E. 894; State v. Graham, 121 N.C. 623, 28 S.E. 409; State v. Frazier, 118 N.C. 1257, 24 S.E. 520; State v. Jeffries, 117 N.C. 727, 23 S.E. 163; State v. Shuford, 69 N.C. 486. But to this, there is the exception, as well established as the rule itself, that proof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae, or to exhibit a chain of circumstantial evidence in respect to the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. State v. Simons, 178 N.C. 679, 100 S.E. 239. Proof of other like offenses is also competent to show the identity of the person charged with the crime. State v. Weaver, 104 N.C. 758, 10 S.E. 486.'

Exceptions 20, 44, 45 and 46 relate to the acts and conversations among the conspirators with reference to the disposition of the rings taken from the men who were robbed at the 'Hole-in-the-Wall'. The defendant contends that these acts and declarations occurred not in furtherance of the conspiracy, but after the joint enterprise had ended; and, were therefore, not admissible against any of the alleged conspirators, except those actually participating in the plans or efforts with respect to the sale or disposition of the rings. The defendant further contends he did not participate in any of these conversations or acts in an effort to dispose of the rings. Exception No. 20 is directed to the testimony of Chappell with respect to the disposition of the rings. Exceptions Nos. 44, 45 and 46 are directed to the testimony of Woods relating to the same subject.

Hart was permitted to tell the complete story relating to the unusuccessful efforts of Sherron to dispose of the rings in Baltimore and of Stroud's request to have the rings delivered at Linwood Earle Summerlin's place; and as to a conversation with Sherron to the effect that he could not find Stroud and had left the rings with Summerlin. Most of this evidence was admitted without objection, and all the exceptions taken to the admission of Hart's testimony have been expressly abandoned by the defendant. Likewise, in other parts of Woods' testimony, he was permitted to testify fully about the rings and their efforts to dispose of them; and, the exceptions entered to such testimony have also been abandoned.

In addition to the above testimony, an officer was permitted to testify as to what he had been told about the rings and their delivery to Summerlin and how the defendant Summerlin had become alarmed when he heard Stroud was in jail, and had thrown the rings away; that Summerlin later informed the officer that a colored boy who worked for him had found the rings and they were delivered to the officer. All this testimony was admitted without objection. In addition to this, the defendant went on the stand and corroborated the testimony of the officer with respect to the rings, how he received them and how he had attempted to get rid of them.

In the light of the facts and circumstances disclosed by the record before us, we do not think the evidence complained of was inadmissible. In the first bill of indictment the defendants were charged with conspiring to steal and carry away rings, money and other valuable property as well as conspiring to commit the felony of robbery with firearms. In the second bill this defendant was charged with aiding, abetting and assisting in the accomplishment of these things. It appears to have been a part of the unlawful design to take these rings, dispose of them and to divide the proceeds upon the basis agreed upon. And when a conspiracy has been sufficiently established or shown, then the acts and declarations of each conspirator done or uttered in furtherance of such unlawful purpose are admissible in evidence against all. Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; State v. Davenport, supra; State v. Blanton, 227 N.C. 517, 42 S.E.2d 663; State v. Smith, supra; State v. Herndon, supra. Moreover, evidence of similar import was admitted without objection. These exceptions will not be sustained. State v. Muse, 230 N.C. 495, 53 S.E.2d 529; State v. Fentress, 230 N.C. 248, 52 S.E.2d 795; State v. Anderson, 228 N.C. 720, 47S S.E.2d 1; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; State v. Brown, 226 N.C. 681, 40 S.E.2d 34; State v. King, 225 N.C. 236, 34 S.E.2d 3; State v. Matheson, 225 N.C. 109, 33 S.E.2d 590; State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648.

Exception No. 55 is directed to the testimony of Paul C. Garrison, Sheriff of Wayne County. The Sheriff had testified without objection about arresting Hart, Woods and Sherron; and also about his trip to Philadelphia where he arrested Chappell. Chappell, according to the evidence, told the Sheriff he did not want to tell all he knew until he got back. But, the Sheriff testified, 'After I got him back, he told me of his participation in the robbery.' 'Q. What did he tell you? A. Just what you have heard, practically verbatim.' Exception.

The defendant contends the answer was a conclusion on the part of the witness, and violated the general hearsay rule, and invaded the province of the jury, citing State v. McLaughlin, 126 N.C. 1080, 35 S.E. 1037, and Stansbury, N.C. Evidence, Sec. 126.

If the solicitor had pursued his inquiry no further as to what Chappell told him, this exception would be well taken. However, the answer of the witness was not accepted and he was requested by the solicitor to repeat as nearly as he could the conversation between him and Chappell. The Sheriff then testified in detail, without objection, as to what Chappell had told him. The exception will not be upheld.

The defendant's exceptions Nos. 49, 53 and 56 are directed to...