STATE
v.
HICKS.
No. 505.
Supreme Court of North Carolina.
May 2, 1951.*875 Ralph V. Kidd and J. C. Sedberry, Charlotte, for the defendant-appellant.
Atty. Gen. Harry McMullan and Asst. Atty. Gen. Ralph Moody for the State.
ERVIN, Justice.
It is an ancient and basic principle of criminal jurisprudence that no one shall be twice put in jeopardy for the same offense. State v. Mansfield, 207 N.C. 233, 176 S.E. 761. Several criteria have been prescribed by the authorities for determining in diverse situations whether two indictments are for the same offense. The one applicable on the present record is the "same-evidence test," which is somewhat alternative in character. It is simply this: Whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment, State v. Freeman, 162 N.C. 594, 77 S.E. 780, 45 L.R.A.,N.S., 977; State v. Hooker, 145 N.C. 581, 59 S.E. 866; State v. Hankins, 136 N.C. 621, 48 S.E. 593; State v. Nash, 86 N.C. 650, 41 Am.Rep. 472; State v. Revels, 44 N.C. 200; State v. Birmingham, 44 N.C. 120; State v. Jesse, 20 N.C. 95, or whether the same evidence would support a conviction in each case. State v. Clemmons, 207 N.C. 276, 176 S.E. 760; State v. Bell, 205 N.C. 225, 171 S.E. 50. See, also, in this connection, 22 C.J.S., Criminal Law, § 279.
Whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first is always to be determined by the court from an inspection of the two indictments. State v. Nash, supra. Whether the same evidence would support a conviction in each case is to be determined by a jury from extrinsic testimony if the plea of former jeopardy avers facts dehors the record showing the identity of the offense charged in the first with that set forth in the last indictment. State v. Bell, supra.
When these rules are laid alongside the case at bar, it is clear that the judge rightly refused to submit to the jury the two specific issues tendered by the defendant and rightly rejected the plea of former acquittal. The plea merely set forth the several indictments and the result of the former trial, and drew the legal conclusion from these bare matters that the defendant was being twice put in jeopardy for the same offense. It did not aver any facts dehors the record showing the identity of the crimes charged in the former indictments with those described in the present one. These things being true, the plea was insufficient, for it revealed on its face the nonidentity of the several offenses. The defendant's legal standing would not be bettered a whit, however, on this phase of the case if his plea of former acquittal had gone beyond the record and invoked the extrinsic testimony. This is so because evidence of a conspiracy to damage or injure property owned or used by the Duke Power Company will not support a conviction of a conspiracy to damage or injure property owned or used by the Jefferson Standard Broadcasting Company. State v. Hicks, supra; State v. Crisp, 188 N.C. 799, 125 S.E. 543.
This brings us to the question whether the trial judge erred in refusing to dismiss the prosecution on compulsory nonsuits under G.S. § 15-173.
The defendant was not entitled to have the action nonsuited on the theory that the crime alleged was committed outside *876 the State. While the conspiracy was formed in South Carolina, one of the conspirators, namely, Chesley Morgan Lovell, committed overt acts in Mecklenburg County, North Carolina, in furtherance of the common design. As a consequence, the Superior Court of Mecklenburg County had jurisdiction to try the action. State v. Davis, 203 N.C. 13, 164 S.E. 737; 22 C.J.S., Criminal Law, § 136. In legal contemplation, a criminal conspiracy is continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. 11 Am.Jur., Conspiracy, section 23.
The defendant advances this additional argument in support of his contention that the trial court erred in refusing to nonsuit the action: The four transformers had been converted into realty by annexation to the land, and by reason thereof belonged to the Jefferson Standard Broadcasting Company. Hence, there was a fatal variance between the indictment charging a conspiracy to damage or injure the property of the Duke Power Company, and the proof showing a conspiracy to damage or injure the realty of the Jefferson Standard Broadcasting Company.
This position is untenable. The transformers were not physically annexed to the land. State v. Martin, 141 N.C. 832, 53 S.E. 874. Moreover, they were placed on the land under a contract with the land-owner specifying that they should remain the property of the Duke Power Company. Consequently, the transformers retained the character of personalty. Western North Carolina R. Co., v. Deal, 90 N.C. 110; Feimster v. Johnson, 64 N.C. 259. It necessarily follows that the testimony of the State was sufficient to carry the case to the jury and to support the verdict on the second count, i. e., the count charging a criminal conspiracy to injure the personal property of the Duke Power Company.
There was no evidence at the trial, however, to sustain the verdict on the first count, i. e., the count charging a criminal conspiracy to commit damage and injury upon the real property of the Duke Power Company. Nevertheless, the erroneous submission of the first count to the jury is unavailing to defendant unless he shows error affecting the second count. This is true because the jury convicted the defendant on both counts, and the court imposed upon him equal sentences running concurrently on both counts. State v. Merritt, 231 N.C. 59, 55 S.E.2d 804; State v. Warren, 227 N.C. 380, 42 S.E.2d 350.
A painstaking examination of the remaining exceptions discloses no prejudicial error affecting the second count.
The testimony of the State's chief witness, Chesley Morgan Lovell, that he was serving a sentence for complicity in the affair under investigation was competent to forestall a contention on the part of the defense that he was testifying for the prosecution to obtain personal immunity. The testimony of the State's witness, Frank Turbeyville, a soldier, that he appeared as a witness at the trial in obedience to orders of his military superior was admissible to counteract the imputation made by the defense on his cross-examination that he was there in the capacity of a hired witness.
The prosecution laid a proper foundation for the introduction of Lovell's evidence as to the telephone conversation in which he was informed of the concealment of the dynamite behind the signboard near Jimmy's Cafe. Lovell had heard the defendant talk, and expressed the opinion that the voice heard on the telephone was that of the defendant. Stansbury, North Carolina Evidence, section 129; United States v. Easterday, 2 Cir., 57 F.2d 165. Any lack of assurance on Lovell's part as to the identity of the speaker went to the weight of the evidence and not to its admissibility. Stansbury, North Carolina Evidence, section 96. Moreover, the telephone conversation contained internal evidence that the person at the other end of the line was a party to the criminal conspiracy formed a week before. State v. Strickland, 229 N.C. 201, 49 S.E.2d 469. It was proper for the State to introduce in evidence the dynamite which Lovell found at the signboard immediately after the telephone conversation and had in his possession at the time of his apprehension. The testimony indicated that the dynamite *877 was provided by the defendant to enable Lovell to consummate the conspiracy. 22 C.J.S., Criminal Law, § 712. It is not perceived how the defendant suffered any prejudice through the unsuccessful effort of the Solicitor to have the witness Lovell identify the dynamite caps. State v. Coffey, 210 N. C. 561, 187 S.E. 754. These articles were not received in evidence.
Since the testimony for the prosecution tended to establish that the ultimate object of the conspiracy was to silence Radio Station WBT, the court rightly received the evidence of the State's witnesses, Fletcher Austin, James B. Patterson, and Alonzo G. Squires, as to antecedent threats of the defendant to injure the Jefferson Standard Broadcasting Company, the owner of the radio station. The same observation applies to the expressions of hostility for the Broadcasting Company contained in the handbill distributed by the defendant and the letter written by him. The threats and expressions of ill will were admissible to show intent and motive. Stansbury, North Carolina Evidence, section 83.
The Solicitor did not transgress legal proprieties in undertaking to impeach the defendant as a witness by cross-examining him as to antecedent acts of misconduct. State v. King, 224 N.C. 329, 30 S.E.2d 230.
The trial judge did not err in his instructions to the jury. When the charge is read contextually, it is manifest that the court instructed the jury accurately on the law of the case, summed up the evidence of the witnesses correctly, and stated the contentions of the prosecution and defense fairly.
For the reasons given, there is in a legal sense
No error.