State v. Turner
| Decision Date | 10 November 1896 |
| Citation | 25 S.E. 810,119 N.C. 841 |
| Parties | STATE v. TURNER et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Jones county; Graham, Judge.
Stephen Turner and others were indicted for conspiracy to defraud. A nol. pros. was entered as to two of the defendants. The others were convicted, and appeal. Affirmed.
The certificate of incorporation of the Massachusetts Benefit Association, one of the prosecutors, was signed by the secretary of the commonwealth of Massachusetts in his official capacity, and sealed with the seal of the commonwealth..
Clark & Guion, for appellants.
The Attorney General, for the State.
The inhibition contained in the constitution (article 4, § 11) [1] applies neither to the holding by any judge of the superior court of one or more regular terms of said court by exchange with some other judge, and with the sanction of the governor nor to the holding of special terms under the order contemplated in section 913 of the Code. [2]. State v Lewis, 107 N.C. 967, 976, 12 S.E. 457, and 13 S.E. 247; State v. Monroe, 80 N.C. 373; State v Speaks, 95 N.C. 689. The intent of the framers of the constitution was to change the then existing system, under which all of the courts of a district were generally held by a resident judge, so that the regular ridings of a whole district or circuit by any given judge would not occur oftener than once in four years. In case of holding specified terms by exchange or special terms by assignment, it is left to the chief executive to give or withhold his assent, and it must be assumed that he will exercise his discretionary power of selecting and assigning those who shall hold special terms with an eye to the best interest of persons directly interested; but, if there were any grounds for doubting the authority of the governor to issue a commission to the judge who presided, and to thereby constitute him a de jure officer in the discharge of that duty, the fact that the governor appointed him, and the public submitted to his authority, constituted him de facto judge of the court which he held, and rendered all of his acts in that capacity as binding and valid as if he had acted de jure. State v. Lewis, supra. Were it otherwise, the public would be subjected to the hazard of having all of the adjudications of a court presided over by an incumbent judge acting by virtue of a commission declared invalid, in all cases where, after a course of litigation, the lawful right to his office is declared to be in a contestant. An illustration could be found in our own judicial annals in a case where Judge Wilson was commissioned as judge of the superior court, but was ultimately, and after holding a number of courts, ejected from the office, under the decision of this court in Cloud v. Wilson, 72 N.C. 155.
David Parker, a witness for the state, "gave a full and detailed account of his connection with the defendants for a number of years previous, and of their place and methods of together cheating and defrauding the insurance companies." He explained "that he was the agent of the defendants to work up their business for them, and that when a policy had been fraudulently obtained upon the life of deceased or aged persons, he (Parker) was to procure a purchaser for it, who would take it, and keep the premiums paid up on it." Parker then testified "that William (Bill) Fisher was also the agent of the defendants; that they all said he was." Among other things, Parker was allowed to testify as follows: "I saw Bill Fisher offer to sell a policy in the Massachusetts Life Association on the life of Melissa Guthrie." The defendants excepted to the admission of that testimony after objection to its competency. The defendants were charged in the indictment with combining and conspiring to cheat the Massachusetts Benefit Life Association and others of divers large sums of money. William Fisher was not a defendant, and the defendants contend that his declarations were erroneously admitted as evidence against them. The same rules of evidence that govern the trial of other criminal offenses apply when the indictment is for conspiracy. But there is a marked distinction growing out of the manner of their application. Ordinarily, it is incumbent on the prosecution to prove participation in an act, but on trials for conspiracy the state must show participation in a design, and the facts in issue are (1) whether there was an agreement for an alleged purpose; (2) whether a defendant charged participated in the design; and (3) whether the common purpose was carried into execution. Here the testimony tended to prove an agreement between the defendants to constitute Fisher (who is not indicted) their agent to do the same unlawful and fraudulent acts that the witness Parker had been doing in furtherance of a common purpose to cheat certain insurance companies, and to show that the...
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