State v. Terrell

123 S.E.2d 469 (1962)

256 N.C. 232

STATE v. William Woodrow TERRELL.

No. 438.

Supreme Court of North Carolina.

January 12, 1962.

*471 T. W. Bruton, Atty. Gen., G. A. Jones, Jr., Asst. Atty. Gen, for State.

Thomas A Banks, Raleigh, Philip R. Whitley, Wendell, Hill Yarborough, John F. Matthews, Louisburg, for defendant-appellant.

*472 HIGGINS, Justice.

On this appeal we are concerned with assignments of error relating to the formation of the conspiracythe making of the plan charged in the indictment. "As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete[d]." State v. Knotts, 168 N.C. 173, 83 S.E. 972. "The conspiracy is the crime and not its execution." State v. Davenport, 227 N.C. 475, 42 S.E.2d 686. Efforts, successful or otherwise, of the parties to carry out their unlawful agreement involved only substantive offenses. Any error with respect thereto in this case was rendered harmless by the verdict.

The defendant urges the conviction on the conspiracy count should be set aside and the judgment based thereon should be reversed because of a fatal variance between the charge and the proof. He argues in his brief, "To make out a case the State had to prove that these circumstances (evidence relating to the manipulation of the tickets at the sale) placed ownership and possession in the named company before Terrell moved the tobacco. Otherwise his act would disturb possession of the warehouse or the farmernot the named company and the case would fail for a variance between the indictment and the proof." He argued at length, citing many cases as to when in auction sales title passes and whether at any particular step in the sales procedure the taking of the property would constitute larceny, false pretense, or embezzlement. "* * * (That) the court erred in failing to instruct the jury the burden (was) on the State of proving beyond a reasonable doubt that the value of the tobacco intended to be stolen would amount to more than $100 at the time of the taking, otherwise the evidence would show only a misdemeanor."

The argument fails to distinguish between the making of the plan and its execution. "It is not necessary for the indictment for conspiracy to describe the subject crime with legal and technical accuracy." State v. Blanton, 227 N.C. 517, 42 S.E.2d 663, 668. The conspiracy in this case was prospective. It was a part of the plan that the parties were to wait for a favorable opportunity to carry it out.

The conspirators knew Monk-Henderson Tobacco Company would buy a substantial amount of tobacco on the Wendell market. How much they would be able to pilfer by manipulating the sales tickets they, of course, did not know. Certainly there is nothing to indicate they intended to stop before the value passed $100.00 and keep the larceny within the misdemeanor class. A conspiracy to commit a felony is a felony. State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25.

The hub of the State's case was the testimony of Mealer. Other bits of supporting evidence tend to add to the picture's dark overtone. The defendant did not testify. However, he introduced rather impressive evidence of his good character. Jack Simmons, in on the preliminaries and now serving time for "tobacco trouble" in Robeson County, did not testify. The State's principal witness was an admitted accomplice. Some jurisdictions require corroboration of such evidence in order to support a conviction. This Court, however, follows the rule that such evidence, even if unsupported, is sufficient if it satisfies the jury of guilt beyond a reasonable doubt. State v. Saunders, 245 N.C. 338, 95 S.E.2d 876; State v. Tilley, 239 N.C. 245, 79 S.E.2d 473.

We have quoted such facts and discussed such legal questions only as relate to the count in the bill upon which the defendant was convicted. The evidence was sufficient to show that Mealer and Terrell formed a conspiracy to steal tobacco by switching tickets enabling them to take and remove as unsold tobacco sold to Monk-Henderson Tobacco Company. The scheme contemplated larceny by trick. The participation of the owner's agent did not change the purpose from larceny to embezzlement *473 or false pretense. The exceptive assignments relating to the conspiracy charge are not sustained on this record. In the trial and judgment below, we find

No error.