STATE
v.
Jack GUTHRIE, Jack Davis and Eugene Thomas.
No. 334.
Supreme Court of North Carolina.
November 24, 1965.*893 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Ralph Moody, Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.
Mashburn & Huff, Marshall, for defendants.
DENNY, Chief Justice.
We shall not undertake a seriatim discussion of the 225 assignments of error based on the more than 500 exceptions set out in the record.
*894 The first assignment of error is to the refusal of the court below to quash the second count in the bill of indictment, to wit, that the defendants "did unlawfully, wilfully interrupt and disturb the public school at Walnut, North Carolina, by assaulting teachers and lunch room personnel and defacing and damaging Walnut School property, all in furtherance of the unlawful conspiracy aforesaid, * * *" charging a violation of G.S. § 14-273, which reads in pertinent part as follows:
"If any person shall wilfully interrupt or disturb any public or private school * * *, within or without the place where such * * * school is held, or injure any school building, or deface any school furniture, apparatus or other school property, * * * he shall be guilty of a misdemeanor, and shall, upon conviction, be fined or imprisoned or both in the discretion of the court."
The defendants contend that since the substantive charge set out in the second count in the bill of indictment is followed by the words, "all in furtherance of the unlawful conspiracy aforesaid," the defendants having been acquitted on the conspiracy count, they cannot be convicted of the substantive charge contained in the second count. This identical contention was raised in State v. McCullough, 244 N.C. 11, 92 S.E.2d 389, and we held: "The fact that the second count states that the substantive offense was committed pursuant to the conspiracy, will be treated as surplusage." This assignment of error is overruled.
Defendants also assign as error the refusal of the court below to sustain their motion for judgment as of nonsuit as to the second count in the bill of indictment, made at the close of the State's evidence and renewed at the close of all the evidence.
A conspiracy is an agreement by two or more persons to do an unlawful act, or to do a lawful act in an unlawful way or by unlawful means, and it is not necessary that the agreement be accomplished, the agreement itself being the offense. State v. Potter, 252 N.C. 312, 113 S.E.2d 573; State v. Hedrick, 236 N.C. 727, 73 S.E.2d 904; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Whiteside, 204 N.C. 710, 169 S.E. 711. Acts and declarations of co-conspirators in furtherance of the common design are admissible against all conspirators. State v. Kirkman, 252 N.C. 781, 114 S.E.2d 633.
While there was voluminous evidence in the trial below tending to show the existence of a conspiracy to obstruct and prevent the execution of the order of the Madison County Board of Education, consolidating the Walnut High School with the Marshall High School and the transfer of the seventh and eighth grade students from the Marshall School to the Walnut School, the jury did not so find and acquitted the defendants on the conspiracy count. Therefore, it is necessary, in order to sustain a conviction of the defendants on the second count, for the State to show beyond a reasonable doubt that each defendant violated the statute, G.S. § 14-273, as charged in the second count.
There is evidence tending to show that defendant Thomas and other unidentified persons, on 22 August 1962, forcibly removed U. B. Deaton, a teacher at Walnut School, from his classroom and from the school building, and ordered him not to return thereto. On the other hand, there is no evidence tending to show that Jack Guthrie or Jack Davis assaulted any teacher or lunch room employee, or that they or either of them interfered with any teacher or lunch room employee in any manner whatsoever; neither is there any evidence tending to show that they or either of them defaced and damaged any of the Walnut School property.
We have carefully studied the evidence against these defendants and, in our opinion, the evidence adduced in the trial below *895 was insufficient to carry the case to the jury on the second count against Jack Guthrie and Jack Davis, and the motion for judgment as of nonsuit on the second count, as to them, should have been allowed. However, as to defendant Eugene Thomas, in our opinion the evidence was sufficient to require its submission to the jury on the second count, and we so hold; therefore, the motion for judgment as of nonsuit, as to him, was properly overruled.
The defendants assign as error numerous portions of the court's charge to the jury on the second count in the bill of indictment. A careful examination of these assignments fails to show any prejudicial error, and they are overruled.
Consequently, the verdict and judgments against Jack Guthrie and Jack Davis are reversed, and the verdict and judgment against Eugene Thomas will be upheld.
As to defendants Guthrie and Davis Reversed.
As to defendant ThomasNo error.