State v. Caldwell

105 S.E.2d 189 (1958)

249 N.C. 56

STATE v. Lester Francis CALDWELL, Jack Ayscue, David Dennis Quick, William Oliver Spencer, and Arthur Monroe Brown, Jr.

No. 218.

Supreme Court of North Carolina.

October 15, 1958.

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

Marvin L. Ritch, Charlotte, for defendant Lester Francis Caldwell, appellant.

Henry E. Fisher, Charlotte, for defendant Arthur Monroe Brown, Jr., appellant.

Hugh M. McAulay, Charlotte, for defendant William Oliver Spencer, appellant.

Francis M. Fletcher, Jr., Charlotte, of counsel, for defendants on appeal.

HIGGINS, Justice.

The two cases are inseparably linked together. The substantive offense is but part and parcel of the conspiracy. The appellants, for their defenses, rely upon their pleas of entrapment. The courts generally hold that a verdict of not guilty should be returned if an officer or his agent, for the purpose of prosecution, procures, induces or incites one to commit a crime he otherwise would not commit but for the persuasion, encouragement, inducement, and importunity of the officer or agent. If the officer or agent does nothing more than afford to the person charged an opportunity to commit the offense, such is not entrapment. The courts do not attempt to draw a definite line of demarcation between what is and what is not entrapment. Each case must be decided on its own facts. This Court, in two recent cases, has stated the rule as it prevails in this jurisdiction: State v. Jackson, 243 N.C. 216, 90 S.E.2d 507; State v. Burnette, 242 N.C. 164, 87 S.E.2d 191, 52 A.L.R.2d 1181. See also, State v. Kilgore, 246 N.C. 455, 98 S.E.2d 346; State v. Wallace, 246 N.C. 445, 98 S.E.2d 473; State v. Boles, 246 N.C. 83, 97 S.E.2d 476; State v. Nelson, 232 N.C. 602, 61 S.E.2d 626; State v. Love, 229 N.C. 99, 47 S.E.2d 712; State v. Godwin, 227 N.C. 449, 42 S.E.2d 617.

Appellants contend that if this Court should hold the evidence of entrapment was not sufficient to entitle them to a directed verdict of not guilty, at least they should be given a new trial for errors committed in the court's charge. Particularly, the defendants object to the following: "* * * or you may return a verdict of guilty as to any two of them in the conspiracy case, and not guilty as to the rest, or you may convict all four of them, or you may return a verdict of not guilty as to all four * * *." Preceding the foregoing as a part of the same sentence, the judge had instructed the jury they might return a verdict of guilty *192 of conspiracy as to Brown, Quick, Spencer, and Caldwell, or "you may return a verdict of not guilty * * *." Directly following the part of the charge to which objection was made, also in the same sentence, the court said: "* * * remembering that the burden is upon the State to satisfy you from the evidence in this case, and beyond a reasonable doubt as to the guilt * * *." Actually the purport of the charge was more favorable than defendants were entitled to. In this respect it must be remembered that not only the four men named were indicted for conspiracy with each other, but also with "other person or persons to the State unknown."

There was evidence Ayscue, "a fellow named Myers * * * two other fellows" attended a meeting, or at least were on hand on one occasion. There was evidence a man in Monroe gave instructions where the dynamite could be procured after Caldwell told him he wanted to bomb the Woodland School. Under the bill any one of the four named could be convicted if he conspired with Ayscue or Myers or the man in Monroe or the "two other fellows," or any one of them. State v. Wynne, 246 N.C. 686, 99 S.E.2d 923. Instead, the court required the State to prove a defendant on trial must have conspired with at least one of the others on trial. The jury acquitted Quick and convicted the other three. There is no indication that the jury misunderstood or drew any unwarranted conclusions from the judge's charge.

Not only in the challenged part, but otherwise, the charge met all legal requirements. The court reviewed the evidence in detail, stated the defendants' contentions fully, and applied the law to the evidence in the case. Especially with reference to the law of entrapment, the instructions were carefully and accurately stated. Taken as a whole, as it must be, the charge contains nothing of which the defendants, or either of them, may justly complain.

The evidence in this case does not disclose a wholesome picture. Neither law nor public conscience will tolerate the use of dynamite as a means of settling racial or other disputes. And while the officers of the law are not infrequently hard put to it to ferret out crime, at the same time it is to be regretted that the police department, through its agent, took such an active part in the events which culminated in the arrest at the Woodland School. The agent, in his own car, made two trips from Charlotte to Monroe for the dynamite which was paid for from the money left after paying "initiation" dues. It was fashioned into a bombthe agent assistedand carried to the school in his car. This, after he was told by a police officer, "there was a reward of $1,000 for the arrest and conviction in connection with dynamiting here in Charlotte." The conspiracy here involved originated after the agent was told of the reward. It may be he was directing part of his efforts toward the discovery of past bombings. It may be, however, the crimes here charged were an outgrowth of a larger plan which the agent, by virtue of his membership in the organization, had opportunity to see develop. Anyway, the jury has accepted the view the plan to bomb the school originated with the defendants and that they freely accepted the assistance of Kinley. The issues were of fact. The jury's findings are conclusive. In law there is no error.

JOHNSON and PARKER, JJ., not sitting.