STATE
v.
BENSON.
No. 217.
Supreme Court of North Carolina.
October 10, 1951.*894 M. Butler Prescott, Raleigh, for defendant-appellant.
Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.
BARNHILL, Justice.
The defendant entered a general demurrer to the evidence and moved to dismiss the cause as in case of nonsuit. His exception to the ruling of the court thereon does not present for decision the question whether there was any sufficient evidence to support the count charging a conspiracy to violate the prohibition law. If defendant desired to challenge the sufficiency of the evidence to establish a conspiracy, he should have directed his motion to that particular count.
The State offered evidence of declarations made to an officer by Boykin sometime prior to the search to the effect that he was working for Benson; that he did not have any whisky then but his boss had gone after some and would be back soon. At a later time, on the day before the search, Boykin told the officer he had no bonded whisky. His boss was on a drunk. He had some fairly good white whisky. He sold the officer one-half gallon of white whisky and some Seven-Up.
This evidence was nothing more than hearsay and was incompetent. Objection thereto should have been sustained.
The existence of a conspiracy may not be established by the ex parte declaration of an alleged conspirator made in the absence of his alleged coconspirator. Only evidence of the acts committed and declarations made by one of the coconspirators after the conspiracy is formed is competent against all, and then only when the declarations are made or the acts are committed in furtherance of the conspiracy. State v. Wells, 219 N.C. 354, 13 S.E. 2d 613; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Herndon, 211 N.C. 123, 189 S.E. 173.
To render such statements competent, there must be evidence aliunde of the existence of the conspiracy at the time and the participation therein of the party against whom the evidence is offered. State v. Blanton, 227 N.C. 517, 42 S.E.2d 663.
There is no evidence aliunde tending to show the existence of a conspiracy between Boykin and the defendant at the time these declarations were made. The evidence as to the search, the finding of liquor in the room in which Boykin slept, and the presence of defendant at his store at the time, is not sufficient to establish a conspiracy between Boykin and Benson to violate the prohibition law. It is well to note here that *895 if any liquor was found in the main part of the store or elsewhere than in the room where Boykin slept, that fact is not made clear on this record.
Ordinarily when the error committed is directed to one count only, and, as to the other counts, the trial was free from error, the verdict on the counts concerning which there was no error will be sustained. But such is not the case here.
In its charge the court instructed the jury that if it found the existence of a conspiracy and further found that Boykin had in his possession liquor upon which federal and state taxes had not been paid, and that he had it for the purpose of sale, it should return a verdict of guilty against Benson on the second and third counts. Of necessity this instruction, on this record, was prejudicial to the defendant.
For the reasons stated there must be a
New trial.