State v. Walker, 373

• Decision Date: 14 January 1960
• Docket Number: No. 373,373
• Citation: 112 S.E.2d 61,251 N.C. 465
• Parties: , 39 Lab.Cas. P 66,216 STATE, v. Warren WALKER, Calvin Ray Pegram, Robert Edward Abbott, Malcolm Jarrell, Johnnie Martin, Boyd E. Payton, Lawrence Gore and Charies Auslander.
• Court: North Carolina Supreme Court

Page 61

112 S.E.2d 61

251 N.C. 465, 39 Lab.Cas. P 66,216

STATE, v. Warren WALKER, Calvin Ray Pegram, Robert Edward Abbott Malcolm Jarrell, Johnnie Martin, Boyd E. Payton Lawrence Gore and Charies Auslander.

No. 373

Supreme Court of North Carolina.

Jan. 14, 1960

Malcolm B. Seawell, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

W. M. Nicholson, Charlotte, James J. Randleman, Elkin, James B. Ledford, Charlotte, and Hill Yarborough, Louisburg, for defendant appellants.

RODMAN, Justice.

The record contains 225 assignments of error. Manifestly a seriatim discussion is not desirable. Instead we treat the basic principles which appellants urge in support of their assignments of error.

When the State rested, defendants severally moved for nonsuit which, if allowed, would have the force and effect of a judgment of not guilty. G.S. § 15-173. They offered no evidence. The court overruled the motions and defendants severally excepted. The correctness of the rulings on the motions so made is the first question presented.

If the evidence offered, when viewed in the light most favorable to the State, was sufficient for a jury to fairly conclude that any two defendants were guilty, the motion as to those defendants was properly overruled. State v. Horner, 248 N.C. 342, 103 S.E.2d 694; State v Block, 245 N.C. 661, 97 S.E.2d 243; State v. Simpson, 244 N.C. 325, 93 S.E.2d 425. If, however, the evidence amounts to no more than suspicion or conjecture, the motion to nonsuit should have been allowed. State v. Glenn, 251 N.C. 156, 110 S.E.2d 791.

The bills charge that defendants 'did unlawfully, willfully and feloniously combine, conspire, confederate and plan together to willfully, maliciously and wantonly injure' the property of another. A conspiracy is an agreement by two or more persons to do an unlawful thing or do a lawful thing in an unlawful way or by unlawful means. The heart of the conspiracy is the agreement. It is not necessary that the object sought by the agreement be accomplished. State v. Hedrick, 236 N.C. 727, 72 S.E.2d 904; State v. Parker, 234 N.C. 236, 66 S.E.2d 907; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Andrews, 216 N.C. 574, 6 S.E.2d 35; State v. Lippard, 223 N.C. 167, 25 S.E.2d 594; State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Whiteside, 204 N.C. 710, 169 S.E. 711.

The refusal to nonsuit requires an examination of the evidence to ascertain if there was an agreement between defendants or any two of them to maliciously injure the property of Harriet Cotton Mills or Carolina Power & Light Company. The evidence as to the guilt of defendants Martin, Payton, Gore and Auslander is confined to the testimony of witness Aaron. Evidence of guilt of defendants Walker, Abbott, Pegram, and Jarrell appears in the testimony of the witness Aaron and confessions related by agents of the S. B. I.

The development of the conspiracy, as related by Aaron, can best be treated chronologically. Aaron is a resident of Leaksville, N. C. He knows Auslander, who lives in a hotel in Reidsville but works in Spray. He testified: 'During the month of May, 1959, I saw Auslander five or six times. He has an office in the Textile Workers Union of America Union Hall in Spray. I think he is the manager of the Local and has been, best I recall, eight, nine, ten years * * * I had an occasion to see him during the month of May, on or before about the 21st of May, in his office at the Union Hall, pursuant to some word I got from somebody. I went to the Union Hall and talked to him during the day * * *. We discussed the strike situation in Henderson, and he said that the Henderson strike was affecting all of the unions in the South and said if the strike was not won in Henderson, it would be against all of the unions in the South.

'We discussed the possibility of going to Henderson to put the mill out of operation. Auslander first mentioned it. He wanted to know if I would go to Henderson and bomb the boiler room and stop operation of the mill * * *. I told him I would do it, would bomb the boiler room, nobody else was present except me and him. We discussed the substation that supplied the mill with power and I told him that I knew where it was * * *. He asked me if I could get somebody to help me. I told him I thought I could.

'I left with the understanding I would get somebody else and meet him * * *. I brought E. C. McBryde from Draper with me to talk with him about the bombing. That conversation was in his office in the daytime. (Present at that time were Auslander, Dave Harris, Auslander's assistant, McBryde, and Aaron) * * * Then we talked of going through with the bombing of the boiler room and the substation that feeds the cotton mills in Henderson. That just about taken care of the conversation at that time * * *.

'I saw Auslander again at his office that afternoon and had a conversation with him * * *.

'Auslander told me to go to Henderson and look the situation over. He gave me $10.00 for expenses to go down to Henderson and look the boiler room over and the substation. That was in cash.'

The witness contacted a member of the State Highway Patrol and informed the patrolman of his conversation with Auslander. The patrolman put Aaron in touch with a member of the State Bureau of Investigation. He related his conversation with Auslander. Pursuant to an understanding with members of the S. B. I. that he would keep them informed of what transpired, he went to Henderson. He testified: 'I came to Henderson on the 2nd of June. * * * When I arrived in Henderson, I called Johnnie Martin from a service station. * * * I saw him at his home * * *. It was daytime when I saw him * * *. When I reached Martin's home, I knocked on the door and he came to the door and I told him that Auslander had sent me down there * * *. I said that I was sent to contact him and we went and got in his car and we discussed why I came to see him * * *. I told him I was sent to bomb the boiler room and the power station and that he would help me out and I told him of another name * * *. I showed him the paper I had * * *. Mr. Auslander gave me the paper in his office at the last meeting with him * * *. He said that he talked to these boys in Henderson and said that he did not think that Martin would actually do the bombing, but said that he would help me out in any other way that he could * * * When I was talking with Martin on this occasion he asked me first why I had not come when I was supposed to. He asked me why I did not come when I was supposed to the week previous * * * Martin said that he would be the one to go between me and Walker if we had to get in touch with each other. Then I went to Warren Walker's home and saw Walker * * *. We talked of the bombing of the boiler room, how to get into it * * *. I told Walker I was down there to bomb the boiler room and asked him would he help me. He said he would. I told him the boy I was going to bring with me could not come and I had to have somebody to help me, and I told him that I understood that they knew all about it and he said they did * * *. I told him that it had to be so that the Union would not be involved in it. If we got caught, we were on our own and they would not have anything to do with it * * *.

'After talking with Walker at length about the actual bombing and how we would do it, I sat up a meeting to meet him. I told Walker we would bomb the boiler room and the substation. * * * He said that he was going to help me bomb the boiler room, the power station, and we talked of all of the things * * * Walker did not at that time mention the office of the Harriet Cotton Mills * * *. I next talked to him at the Brookwood Motel on or about the 3rd of June * * *. Lawrence Gore was with him. It was in the nighttime * * * Gore asked me why I didn't come when I was supposed to and I explained to him why I didn't come, that I didn't trust the boy I was bringing with me and I could not bring him and I told him that I would rather come by myself * * *.

'Gore said that he thought that the main office building of the South Henderson Mill would be of more importance than the boiler room. He said that they had records that could not be replaced * * * He said he would see some boys that were to help me do the actual bombing and he said that me and him would not meet again * * *.'

Aaron returned to Rockingham County on 5 June. He testified: 'I saw Auslander when I got to Leaksville. He asked me why I had not got rid of the main office building. We were discussing dynamite and he had made a call--he told me that he was going to call South Carolina * * *. He said: 'I am going to make a call.' He said about some 'bones,' as to what kind of 'bones,' that is dynamite. He made the call on the telephone. I heard what he said when he made the call. He placed the call to Spartanburg, South Carolina * * * I heard what he said to him. He said that he needed, asked him first did he have any 'bones' hid * * *. In response to what the person on the other end of the line said, Auslander said, he had a boy in the office there that would come down and get them, get the bones.'

Aaron communicated this conversation to the S. B. I. Pursuant to their request, he came to their office in Raleigh. He then went to the Brookwood Motel at Roanoke Rapids. This room had, with Aaron's consent, been wired with a tape recorder. Aaron continued: 'Warren Walker came to my room alone. I talked with him * * he asked me what I was planning to do and I told him that I didn't know, that as far as I was concerned that the 'bones' would have to come from Henderson, because I could not get any in Leaksville * * * we talked about bombing the boiler room, the substation and the setting fire with Molotov Cocktails the main office building at the South Henderson mill.

'A Molotov Cocktail is fuel oil and gasoline mixed in a bottle and corked up with a fuse on the outside. When it bursts...