State v. Locklear

174 S.E.2d 641 (1970)

STATE of North Carolina v. Joe LOCKLEAR (Alias Hoss Locklear).

No. 7016SC290.

Court of Appeals of North Carolina.

June 24, 1970.

*642 Robert Morgan, Atty. Gen., by Sidney S. Eagles, Jr., Asst. Atty. Gen., for the State.

Henry B. Shore, Lumberton, for defendant appellant.

GRAHAM, Judge.

Defendant does not challenge the sufficiency of the evidence to support the charge of larceny, but he does contend that the court erred in failing to nonsuit the conspiracy charge, since the only evidence tending to support that charge related to events which happened after the offense of conspiracy, if it occurred at all, had been consummated.

The cases cited by defendant establish that the beginning of a conspiracy to commit a crime must precede the commission of the crime itself. This principle is elementary. It does not follow, however, that the presence of a conspiracy can be proved only by direct evidence of acts which precede the commission of the actual crime. In State v. Andrews, 216 N.C. 574, 577, 6 S.E.2d 35, 37, Devin, J. (later C. J.), stated as follows:

"The existence of the unlawful agreement need not be proven by direct testimony. It may be inferred from other facts, and the conditions and circumstances surrounding. 11 Am.Jur. 548, 570. `The results accomplished, the divergence of those results from the course which would ordinarily be expected, the situation of the parties, and their antecedent relations to each other, together with the surrounding circumstances, and the inferences legitimately deducible therefrom, furnish, in the absence of direct proof, and often in the teeth of positive testimony to the contrary, *643 ample ground for concluding that a conspiracy exists.' State v. Whiteside [204 N.C. 710, 169 S.E. 711], supra; State v. Anderson, 208 N.C. 771, 787, 182 S.E 643; State v. Shipman, 202 N.C. 518, 163 S.E. 657; State v. Ritter, 199 N.C. 116, 154 S.E. 62."

The evidence in this case, when taken in the light most favorable to the State, is ample to support a finding by the jury that defendant and Huel Locklear combined or agreed to commit larceny by unlawfully removing the tobacco in question from the possession of its owners and appropriating it to their own use. "As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete." State v. Knotts, 168 N.C. 173, 188, 83 S.E. 972, 979. It is our opinion, and we so hold, that the court properly overruled defendant's motion for nonsuit.

Defendant also assigns as error the failure of the court to instruct the jury as to the essential elements of larceny. This assignment of error must be sustained. A careful review of the complete charge of the court as it appears in the record discloses that at no point in the charge was the jury instructed as to any of the essential elements of the crime of larceny. Whether this resulted from an inadvertence on the part of the trial judge or an omission by the reporter in transcribing the charge we do not know. In any event, the record, including the charge, has been certified by the clerk and contains a stipulation that the transcript and the judge's charge are correct. Suffice to say, the failure of the charge to contain essential instructions regarding the offenses of which defendant has been convicted constitutes a violation of G.S. § 1-180 and requires a new trial on both counts.

New trial.

MALLARD, C. J., and MORRIS, J., concur.