State v. Howard , 129 N.C. 584 ( 1901 )

Clark, J.

The defendants, J. L. Howard alias Thompson, Gonez Bono alias A. L. Daley, and H. D. Hawley, are indicted for a conspiracy 1» defraud. The indictment was in three counts. At the close of the evidence for the State, the defendants moved the Court to- require an election by the State upon which count it would rely for conviction. Thereupon the Solicitor elected to rely upon the first count, and entered a "nolle prosequi as to the second and third counts:— these other counts to be referred to as furnishing particulars.” Upon this being done, the defendants asked the Court to instruct the jury to' return a verdict of not guilty, and etxcepted to the refusal. The defendants introduced no> evidence.

The three counts were simply a description of the same transaction in different ways, and. the joinder was unobjectionable. The Court need not, therefore, have required an election.’ State v. Barber, 113 N. C., at page 714, citing State v. Morrison, 85 N. C., 561; State v. Allen, 107 N. C., 805; State v. Harris, 106 N. C., 682; State v. Parish, 104 N. C., 679; State v. Horan, 61 N. C., 571, 576.

Tlio evidence is uncoartradicted, and its chief features will be set out by the reporter in the statement of the case. It is almost dramatic in its details, and presents with striking clearness the methods of a fashion of swindling, which has doubtless been little practiced in this State. The indictment in full will also be copied by the reporter.

The first exception is, that the indictment did not set out the means by which the conspiracy was to be executed. The point is expressly decided in State v. Brady, 107 N. C., 822, where it is held, upon our own authorities, that a conspiracy to cheat and defraud need not charge the means to' be used. Such was also' the common law, as will be seen by reference to the English cases therein cited; also, citing Commonwealth v. McKisson, 8 S. & R. (Pa.), 419; 3 Greenleaf Ev., sec. 95 ; and while stating that some States had held differently, this Court decided to abide by our own and the English rule. The learned counsel from Illinois, who ably argued this exception for the defendants, admitted this, but at great length endeavored to persuade us to overrule our own decisions, contending that the weight of authority in this country was to the contrary. We think not, but if it were, that alone would not be sufficient to induce us to change, unless injustice was shown to follow from our decisions. In fact, however, the weight of authority in other States seems to uphold our ruling. Among many cases to like effect are State v. Noyes, 25 Vt., 415; State v. Bartlett, 30 Mo., 132; State v. Crowley, 41 Wis., 271; Thomas v. People, 113 Ill., 351; State v. Stewart, 59 Vt., 273; State v. Grant, 86 Iowa, 216; People v. Clark, 30 Mich., 310; 2 Bish. New Crim. Proc., sec. 207(2).

The Code of Civil Procedure, sec. 259, provides: “The Court may in all cases order a bill of particular’s of the claim of either party to be furnished.” In this case these particulars were fully furnished by the second and third counts, which were only not prossed at the instance of the defendants and after the close of tih.e evidence, so that they were in full possession of all the information which a bill of particulars could have furnished them.

The next exception was for refusal of the motion to quash: '‘For th'at the allegations in the said bill of indictment, and in each and every count thereof, do not constitute a crime under the Ordinance of Conspirators, made and accorded by King Edward the First and his Council in the thirty-third year of his reign, A. D. 1305, nor by any statutes in England since that date, nor under any common law in force in the State of North Carolina at the date of the said alleged offense.”

With reference to the statute 33 Edward I, de conspiratori-bus, Judge Council charged the jury as follows:

“Its existence can be traced back centuries prior to’ our Independence) and such eminent ancient law writers as Coke, H awldns and others, refer in their works to' the existence of this crime prior to the passage of the Statute 33 Edward I, de conspiraioribus, which statute has been commented upon by counsel for the defendants. Law.writer’s upon the subject of conspiracy generally agree that the statute referred to was only declaratory of the common law to the extent of the crimes enumerated in the act, leaving the common law as applicable to all other forms of conspiracy known to' the law.”

The cases sustaining his Honor’s view of the law of conspiracy are numerous; among them, State v. Buchanan, 5 Harris and Johnson (Maryland), page 317, is an elaborate discussion of the question, covering fifty pages, and many authorities are cited. In this case; at page 333, the Court says: “Much reliance is placed on the statute of Edward I, de con-spiratoribus on the supposition that the offense of conspiracy was originally created by that statute.” The learned Judge then proceeds to' show, pages 333-351, that the offense of conspiracy existed prior to the passage of 33 Edward I, was passed in 1304, and on page 351 observes-: “By a course of decisions running through a space of more than four hundred years from the reign of Edward I to the 59th of George III, without a single conflicting adjudication, these points are clearly settled:

“1. That the offense of conspiracy is of common law origin, and not restricted or abridged by the statute 33 Edward I.

“2. That a conspiracy to do> any act that is criminal per se., is an indictable offense at common law, for which it can scarcely be necessary to offer any authority.”

In State v. Burnham, 15 New Hamp., 396, Gilchrist, J., speaking for the Court, says: “In the first place, we have no doubt that conspiracy is an indictable offense in this State. It is punishable at common law, its punishment is most repugnant to our institutions, and it is an offense productive of much injury, and as deserving reprehension under one .form of government as another.”

To the same effect are Commonwealth v. Hunt, 45 Mass., 111; State v. Pulle, 12 Minn., 164.

In the last case the defendants were indicted for a conspiracy to assault one James IT. Murray, to daub and put upon his naked body a great quantity of tar and feathers, and the point was made “that there is no statute in this State creating or defining the crime of conspiracy, nor is any punishment affixed by law to any such offense, and, therefore, this Court had no- jurisdiction thereof. The Supreme Court held on appeal that conspiracy not declared a crime by the statute law was punishable because of the common law.”

In United States v. McCord, 12 Fed. Rep., 159, it is said: “The statutes of the United States do not define what a conspiracy is, or create any new offense. They merely recognize the crime of conspiracy as known to the common law and the courts must go to- the common law to determine what it is.”

In 2 Bishop’s New Criminal Law, sec. 114, the statute of 33 Edward I is quoted in full, and the author adds, in subsection 2, the following:

“Since this statute contains no' negative word, a principle explained in another connection shows that it abrogates nothing* of the prior common law, but leaves indictable whatever of conspiracy was so before.”

In State v. Younger, 12 N. C., 357, this Court held that “a combination of two or more to do. any unlawful act, or one prejudicial to another, is indictable at common law as a conspiracy.” State v. Brady, 107 N. C., 822; State v. Powell, 121 N. C., 635; State v. Wilson, 121 N. C., 650.

The cases already, cited dispose of the other exceptions for refusal to quash. Some of the authorities cited by defend- . ants are no longer authorities, since The Code of 1883 added to section 1025 the second proviso thereof, that in indictments for false pretence, “it shall be sufficient in any indictment for obtaining, or attempting to obtain, any such property by false pretences, to allege that the party accused did the act with intent to defraud, without alleging an intent to' defraud any particular person, and without alleging any ownership of the chattel, money or valuable security; and, on the trial of any such indictment, it shall not be necessary to' prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act with intent to defraud.”

The third exception is as follows: “While the regular panel of jurors was, in the court-room, the defendants moved to separate the witnesses and to- exclude them from the courtroom while said jury was being selected and empaneled and during the trial of said cause. The Solicitor, objecting, said that the witness Paul Garrett would be the first witness examined, and the others would testify as to matters not in his knowledge, except the detection in Greensboro. Whereupon the Court remarked that it was a matter of discretion with the Court, and that all the witnesses, except the complaining witness, Garrett, and the high Sheriff of the county, might be excluded from the Court; but as to' these witnesses, their high character as citizens forbade the idea that either of them would be influenced by the testimony of the other.” It would indeed be sufficient to' say that it does not appear that any one of the jurors, who actually sat on the trial, heard the remark; but we prefer to put our ruling upon broader ground. By the common law, Judges -were not prohibited from expressing an opinion upon the facts, and this is still true of the Federal Courts and all the States in which there is no- statute making a change in this respect. In North Carolina, the only change is that made by the Act of 1196, now Code, see. 413, which leads as follows: “No Judge, in giving a charge to the -petit j ury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently provenThis is the extent of the statutory change. It goes m> further. In State v. Angel, 29 N. C., 27, Ruffin, C. J., says: “The Tacts’ on which the act (1796) restrains him (the Judge) from expressing an opinion to the jury are those respecting which the parties take issue or dispute, and on which, as having occurred or not occurred, the imputed liability of the defendants depends.” In State v. Laxton, 78 N. C., 564, Smith, C. J., says.: “It is quite obvious from the words of the act that its special object -was to prevent the intimation of such opinion in connection with and constituting a pari of the instructions by which the jury were to be governed, and when its influence on their minds would be direct and effective.” To. same purport in DeBerry v. Railroad, 100 N. C., 310; State v. Robertson, 86 N. C., 628; State v. Jones, 67 N. C., 285. These u-ere cases in which the remarks were made by the Judge during the progress of the trial, but it is not necessary that wo pass upon the question whether the remark here made by the Judge would be ground for setting aside the verdict if made during the progress of the trial, for it was not made at such time. At the time when made, no juror had been selected, and the remark was not “to the jury,” nor did it contain any opinion that “a fact was fully or sufficiently proven.” No fact had been shown in evidence. The remark was not prohibited at common law, and is certainly not prohibited by any terms in the statute. No decision of our Court has ever hinted that a statute forbidding the Judge “in a charge to- the petit jury” from “expressing an opinion whether a fact is fully or sufficiently proven,” extended to the re-^ marks of a Judge complimentary to one (who was afterwards examined as a witness) made before the jury was selected or empaneled. In every case where such a proposition has been presented, this Court has denied the application of the statute. State v. Jacobs, 106 N. C., 695; S. C., 107, N. C., 774; State v. Jackson, 112 N. C., 853.

The defendants except to the sentence imposed of imprisonment in the penitentiary, but concede that this Court has ruled otherwise in State v. Mallett, 125 N. C., 718, which we re-affirm.

The other exceptions were without merit and were not .seriously pressed in this Court.

Affirmed.