STATE of North Carolina
v.
Earl V. PURYEAR.
No. 7610SC421.
Court of Appeals of North Carolina.
October 6, 1976.*540 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.
Ragsdale, Liggett & Cheshire, by George R. Ragsdale and Peter M. Foley, Raleigh, for defendant-appellant.
VAUGHN, Judge.
Defendant brings forward thirteen assignments of error grouped into nine arguments. The first two arguments are in support of six assignments of error wherein defendant contends that the judge erred in admitting what defendant contends is hearsay evidence. Defendant further contends that the admission of the alleged hearsay evidence violated his constitutional right to confront the witnesses against him.
The exceptions are to the testimony of Dickens when he was allowed:
1. To testify relative to the two telephone conversations he had with Tommie Puryear prior to being seized and scourged by defendant and his masked accomplices. The details of those conversations have been set out in our statement of the facts. In summary, Dickens testified that Tommie Puryear first called early in the afternoon and told him that her parents were away, that she was going to Johnston County and that she would return to Raleigh and meet him in his apartment that night. The second call was placed to Dickens at about the time she was to have met him at his apartment in Raleigh. In that conversation she represented that her car was disabled in an isolated rural area of Johnston County, that her parents were out-of-town and that there was no one else upon whom she could call for help. She gave him specific directions as to the route he should follow in order to reach her.
2. To testify that when he reached the prearranged site, Tommie Puryear told him that her lights had been shorting out.
3. To testify that defendant's wife, Ann Puryear, told defendant, after defendant had directed her to come out and look at Dickens, "she didn't want to see the S.O.B."
4. To testify that one of the masked men who was participating in the assault told defendant and the other assailants, "let's just hurry up, get this thing over with. That he had to get back to Wake Forest."
We hold that the court properly overruled defendant's objections to all of the foregoing evidence.
"`Evidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it . . ..' Expressed differently, whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. If offered for any other purpose, it is not hearsay." Stansbury, North Carolina Evidence, § 138.
The probative force of Dickens' testimony did not depend on the competency or credibility *541 of any person other than himself. The factual questions for resolution by the jury were whether Tommie Puryear, Ann Puryear and the masked accomplice made the statements he testified he heard them make, not whether the statements were true.
If the jurors believed Dickens' testimony they could find that the statements by the alleged co-conspirators were acts incriminating them as members of an active conspiracy and that those acts were in furtherance of the conspiracy. Dickens was the witness whose truthfulness was at issue. The jury could hear his words and observe his demeanor. Defendant was given the opportunity to confront the witness and test his credibility in the crucible of cross-examination. The confrontation clause of the Constitution was, therefore, not transgressed.
If the State offers other evidence tending to show the existence of a conspiracy, the acts and declaration of each party to it in furtherance of the objectives of the active conspiracy are admissible against the other members. State v. Conrad, 275 N.C. 342, 168 S.E.2d 39.
There is ample evidence in the record from sources other than the declarations of the alleged co-conspirators to show the existence of a conspiracy at the time the declarations were made. That evidence includes the following: Defendant was angry with Dickens over his association with Tommie Puryear and had made remarks about killing him. At that time he was carrying a pistol, a pair of handcuffs, a rope and a leather whip in the trunk of his car. Defendant said he "would get" Dickens. Thereafter, at night, defendant, his wife, his daughter and four masked men are shown to be together in an isolated rural area of Johnston County. When Dickens appeared, defendant called for his wife to "come out and see this S.O.B. that ruined our home." Tommie Puryear begged her father to "do what he promised." Defendant called for the masked men, "Ya'll come on out" and then directed the men to "get him." Defendant and the masked group, armed with a pistol, a knife, a whip and nightsticks then proceeded to assault Dickens. During the course of the assaults, reference was made to Dickens' association with Tommie Puryear and the group held several conferences on whether to kill or castrate Dickens. It is a manifest understatement to say only that the foregoing constitutes some evidence that defendant had agreed with one or more of the others that the assault would take place. It is probably only rarely that such direct, clear and convincing evidence is available to point so unerringly to the existence of a conspiracy. Generally, they must be proven by a number of indefinite acts which, standing alone, mean little but when put together permit a reasonable inference that a conspiracy has been formed. Former Chief Justice Stacy once gave this example:
"If four men should meet upon a desert, all coming from different points of the compass, and each carrying upon his shoulder a plank, which exactly fitted and dovetailed with the others so as to form a perfect square, it would be difficult to believe they had not previously been together. At least it would be some evidence tending to support the inference." State v. Lea, 203 N.C. 13, 164 S.E. 737.
For the reasons stated, defendant's assignments of error Nos. 1, 2, 3, 4, 5, and 13 are overruled.
In his seventh assignment of error defendant argues that the trial judge committed prejudicial error in failing to grant his motion to dismiss on the grounds of improper venue. The motion was orally made and denied when the case was called for trial and again denied at the close of the evidence.
The record discloses that on 8 May 1975, defendant filed a plea in abatement wherein he denied that the alleged offense took place in Wake County as alleged in the bill of indictment and also moved that the case be removed to Johnston County. A hearing was held. On 28 May 1975, Judge Lee entered an order denying defendant's plea in abatement. No exception was taken to *542 that order. The evidence presented at the hearing on the plea is not brought forward. It is, therefore, presumed that the proceeding was free from error and that Judge Lee properly denied defendant's motion. State v. Overman, 269 N.C. 453, 153 S.E.2d 44. The issue having been resolved by Judge Lee in May, Judge Bailey properly declined to overrule Judge Lee's decision when the case was called for trial in November. The assignment of error is overruled.
In his sixth assignment of error defendant contends that the court erred in overruling his motion to dismiss because of the insufficiency of the evidence. As we have previously indicated, it is our opinion that the evidence was sufficient to take the case to the jury. Defendant particularly urges that there was insufficient evidence to show that the conspiracy was formed in Wake County or that any act in furtherance of the conspiracy took place in Wake County. The Superior Court of Wake County had jurisdiction over defendant and the alleged offense. The question of venue, as we said before, was settled when Judge Lee denied defendant's plea in abatement and it was not necessary to relitigate that issue at trial. Defendant, having failed to except to Judge Lee's order is in exactly the same position he would have been had he failed to raise the question of improper venue in the fashion and time required by statute. The question of venue is not an issue for trial after the jury has been empaneled. State v. Dozier, 277 N.C. 615, 178 S.E.2d 412; State v. Outerbridge, 82 N.C. 617. For these same reasons any possible error (which we do not concede) in the judge's instruction that the making or receiving of a telephone call in Wake County would be an act occurring in Wake County is rendered harmless. Defendant's eighth assignment of error is, therefore, overruled.
Defendant's ninth assignment of error is also directed to a portion of the judge's charge. On cross-examination defendant elicited testimony from Dickens that he had formed an impression to the effect that Tommie Puryear's participation in the conspiracy was involuntary. In the portion of the charge to which defendant excepts the judge instructed the jury as to what duress would excuse one from acting as a conspirator and negate the fact that one was a conspirator. Defendant contends that the court entirely misconstrued the nature of the offense for which defendant was being tried. In his brief he argues:
"The trial Court confused and combined the issues of whether Tommie Puryear was acting under duress (an issue which was completely immaterial to this trial) with whether there was an unlawful concurrence between the defendant and his daughter to perform unlawful act assault James Robert Dickens."
Defendant concedes that in order to constitute a defense to a substantive criminal charge "the coercion or duress must be present, imminent or impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done." Defendant argues, nevertheless, that:
"It must be restated, however, that the defendant was not on trial for the substantive crime of assault, and neither was Tommie Puryear. The question of whether Tommie Puryear feared serious bodily harm could only be relevant if SHE were on trial for a substantive crime and its insertion into this case served only one purpose to confuse the jurors as to the definition and requirements of proof of a conspiracy."
We believe defendant is mistaken. There is no difference in the degree of criminal intent (or coercion that would negate that intent) required in a prosecution for conspiracy to assault than that required in a prosecution for assault. The same may be said with reference to Tommie Puryear's participation in the conspiracy with defendant. Unless it could be excused (by reason of her having acted under duress) in a prosecution against her, it could not be excused as a defense in a prosecution against defendant for the same conspiracy. The assignment of error is overruled.
Defendant's tenth assignment of error is overruled. A contextual reading of the entire *543 charge does not support the laborious argument brought forward to support the alleged error.
The part in parenthesis in the following portion of the charge is the subject of defendant's eleventh assignment of error.
"Now, Ladies and Gentlemen of the Jury, you should not decide this case upon the basis of your own standard of morals, nor upon what you might like the law to be.
(No person is justified in taking the law in his own hands. No person is justified to constitute himself the keeper of the morals of his fellowman. No person is justified in acting as judge, jury and executioner. You should not decide this case upon the basis of sympathy for anyone, nor upon the basis of anger at anyone. You should decide this case upon the basis of the law that I have given you and the facts as you find them to be.)"
There was evidence in the record tending to show: Defendant felt Dickens should be punished for his immoral and illegal activities. He talked of killing Dickens. He said he would have him whipped. He organized and assembled a squad of henchmen for that purpose. He extracted confessions of crime and misconduct while Dickens was under the lash. Votes were taken on whether he should be killed or mutilated. The panel, apparently against defendant's vote, decided to free Dickens after the scourging. In short, the evidence tended to show that defendant did attempt to take the law into his own hands and act as judge, jury and executioner. In the trial of a criminal case, not every right must run in favor of the accused. Simple justice required that the jury be reminded that notwithstanding the absolutely reprehensible conduct of Dickens, that conduct could not excuse defendant's alleged unlawful attempt to summarily try and punish him for his wrongs. The exception is without merit.
"It his final assignment of error defendant contends that the sentence imposed is in excess of that allowed by law. Defendant argues that the punishment cannot exceed thirty days, the maximum provided for a conviction of simple assault. Defendant is mistaken.
Conspiracy to commit a simple assault is a misdemeanor for which no specific punishment is provided by statute. The crime is, therefore, punishable by fine, by imprisonment for a term not exceeding two years, or by both in the discretion of the court. G.S. 14-3(a).
We find no prejudicial error in defendant's trial or in the judgment entered.
No error.
BROCK, C. J., and MARTIN, J., concur.