State v. Davenport

Denny, J.

We shall first consider tbe exceptions to tbe refusal of bis Honor to sustain tbe motions to quash tbe bills of indictment.

Notwithstanding tbe various grounds advanced for quashing these bills, tbe motions in fact point out but two alleged defects in' them: (1) Tbat tbe bills do not set out in tbe first count tbe plan, scheme or contrivance by which tbe conspiracy was to be executed; and (2) tbat tbe indictments do not allege any offense against tbe criminal laws of tbe State.

A bill of indictment, charging “a conspiracy to cheat and defraud need not charge tbe means to be used” in tbe execution of tbe conspiracy, S. v. Howard—Gold Brick Case, 129 N. C., 584, at p. 657, 40 S. E., 71. S. v. Brady, 107 N. C., 822, 12 S. E., 325; 11 Am. Jur., 564. And we do not concur in tbe view tbat tbe bills of indictment under consideration do not charge a violation of tbe criminal laws of tbe State. In tbe first count of tbe bills, tbe defendants named therein are charged with a con*491spiracy to obtain money from tbe public in general and certain individuals in particular by means of false pretenses, contrary to tbe form of tbe statute in sucb case made and provided. In tbe second count of eacb bill it is charged that tbe defendants in pursuance and furtherance of said conspiracy made false and fraudulent representations, knowing them to be false, and made sucb false and fraudulent representations with tbe intent to cheat and defraud certain individuals, naming them, and various and sundry others, and as a consequence of said false and fraudulent statements, which were intended to deceive and did deceive said individuals and various and sundry others, tbe defendants did obtain certain sums of money, tbe property of tbe named individuals, and did unlawfully obtain from various and sundry others large sums of lawful money, their property, with intent then and there to defraud, ■contrary to tbe form of tbe statute in sucb case made and provided.

Tbe allegations contained in tbe second count in these respective bills of indictment are sufficient to charge a violation of tbe statute, G. S., 14-100. Among other things, it is provided in this statute: “That it shall be sufficient in any indictment for obtaining . . . property by false pretenses to allege that tbe party accused did tbe act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any OAvnership of tbe chattel, money or valuable security; and, on tbe trial of any sucb indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that tbe party accused did tbe act charged with an intent to defraud.”

The action of the court below in overruling the motions to quash must be upheld under our decisions, among which we cite S. v. Abernethy, 220 N. C., 226, 17 S. E. (2d), 25; S. v. Howley, 220 N. C., 113, 16 S. E. (2d), 705; S. v. Dale, 218 N. C., 625, 12 S. E. (2d), 556; and S. v. Lea, 203 N. C., 13, 164 S. E., 737. In the last cited case, Stacy, C. J., in speaking for the Court, said: “The statute, C. S., 4623 (G. S., 15-153), provides against quashal for mere informality or refinement, and judgments are no longer stayed or reversed for non-essential or minor defects. C. S., 4625 (G. S., 15-155); S. v. Beal, 199 N. C., 278, 154 S. E., 604. The modern tendency is against technical objections which do not affect the merits of the case. S. v. Hardee, 192 N. C., 533, 135 S. E., 345; Rudd v. Casualty Co., 202 N. C., 779 (164 S. E., 345). If the bill or proceeding contain sufficient matter to enable the court to proceed to judgment, the motion to quash for redundancy or inartificiality in statement is addressed to the sound discretion of the court. S. v. Knotts, supra (168 N. C., 173, 83 S. E., 972). There was no error in refusing to quash the indictments on the grounds of duplicity and indefiniteness. S. v. Beal, supra." Also, in S. v. Howley, supra, Winborne, J., in speaking for the Court, said: “In our criminal procedure it is provided by *492statute, C. S., 4623 (G. S., 15-153), that every criminal indictment is sufficient in form if it express the charge against the defendant in a plain, intelligible and explicit manner, and that the indictment shall not be quashed nor the judgment thereon stayed by reason of any informality or refinement, if in the bill sufficient matter appears to enable the court to proceed to judgment,” citing numerous authorities.

When these bills of indictment are tested by the principles laid down in the above decisions, we hold them to be sufficient to withstand the motions to quash.

The defendant Davenport assigns as error the refusal of his Honor to allow his challenge for cause, of H. L. Elks, a juror in the trial below. Mr. Elks was called as a juror after the defendant had exhausted all his peremptory challenges. In response to a question by counsel for the defendant, Davenport, Mr. Elks stated that from what he had seen in the papers it would require evidence to remove his opinion or impression against the defendant, Davenport. Upon further questioning by the Solicitor, he stated that he could give Davenport a fair trial “if he pleads not guilty.” Whereupon the court propounded the following question: “Are you certain that you can sit there and try the case on the evidence as it shall develop during the trial, and the charge of the Court and the argument of counsel and render a fair and impartial verdict, despite anything you may have heard or read ?” Mr. Elks replied, “I’ll give him a fair trial; Yes, sir, I could do that.” The challenge was thereupon overruled.

It is provided by statute, G. S., 9-14, that the judge “shall decide all questions as to the competency of jurors,” and his rulings thereon are final and “not subject to review on appeal unless accompanied by some imputed error of law,” S. v. DeGraffenreid, 224 N. C., 517, 31 S. E. (2d), 523. The exception to the ruling of the court below in denying the defendant’s challenge for cause, in view of the statement of the juror that he could render a fair and impartial verdict despite anything that he might have heard or read, presents no reviewable question of law. S. v. Lord, 225 N. C., 354, 34 S. E. (2d), 205; S. v. Dixon, 215 N. C., 438, 2 S. E. (2d), 371; S. v. Bailey, 179 N. C., 724, 102 S. E., 406; S. v. Terry, 173 N. C., 761, 92 S. E., 154; S. v. Foster, 172 N. C., 960, 90 S. E., 785; S. v. Banner, 149 N. C., 519, 63 S. E., 84; S. v. Bohanon, 142 N. C., 695, 55 S. E., 797; S. v. Potts, 100 N. C., 457, 6 S. E., 657.

The appealing defendant assigns as error the refusal of his Honor to sustain his motions for judgments as of nonsuit as to each count in both bills, interposed at the close of the State’s evidence and renewed at the close of all the evidence.

The defendant devotes 93 pages of his brief to a discussion of these motions. It is well settled with us that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be *493considered in the light most favorable to the State; and when so considered, if there is more than a scintilla of competent evidence to support the allegations in the warrant or bill of indictment, it is the duty of the court to overrule the motion and to submit the case to the jury. Moreover, on such motion, the State is entitled to the benefit of every reasonable inference which may be fairly drawn from the evidence. S. v. Gordon, 225 N. C., 757, 36 S. E. (2d), 143; S. v. Scoggins, 225 N. C., 71, 33 S. E. (2d), 473; S. v. Herndon, 223 N. C., 208, 25 S. E. (2d), 611; S. v. McKinnon, 223 N. C., 160, 25 S. E. (2d), 606; S. v. Johnson, 220 N. C., 773, 18 S. E. (2d), 358; S. v. Mann, 219 N. C., 212, 13 S. E. (2d), 247; S. v. Brown, 218 N. C., 415, 11 S. E. (2d), 321; S. v. Landin, 209 N. C., 20, 182 S. E., 689.

The defendant concedes the correctness of the rule as stated above, but insists that since the State must prove beyond a reasonable doubt the essential elements necessary to constitute the crime of false pretense, a failure of proof as to any one or more of the elements requires the entry of a judgment as of nonsuit. To be sure the court below in passing upon these motions should have sustained them unless there was some competent evidence before him, when considered in the light most favorable to the State, which tended to support the essential allegations in the bills to which the respective motions were directed. A trial judge, however, in passing upon such motions, under the provisions of G. S., 15-173, is not bound by the measure or quantum of proof by which the State must prove a defendant’s guilt before the jury can convict him. Stacy, C. J., in speaking for the Court in S. v. Adams, 213 N. C., 243, 195 S. E., 822, stated the general rule as follows: “If there is any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for, short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. S. v. Vinson, 63 N. C., 335. But if the evidence warrant a reasonable interference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt. S. v. McLeod, 198 N. C., 649 (152 S. E., 895); S. v. Blackwelder, 182 N. C., 899, 109 S. E., 644.”

The two eases under the separate bills of indictment, were consolidated for the purpose of trial. Hence, we shall treat these bills as one, and the counts contained in the two bills as if separate counts in one bill, for such was the legal effect of the order of consolidation.

The appealing defendant and certain other individuals are charged with conspiring to commit a felony. “A conspiracy is the unlawful concurrence of two or more persons in a wicked scheme — the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful *494way or by unlawful means.” S. v. Whiteside, 204 N. C., 710, 169 S. E., 711; S. v. Lea, supra; S. v. Ritter, 197 N. C., 113, 147 S. E., 733. No overt act is necessary to complete tbe crime of conspiracy. “Tbe conspiracy is tbe crime and not its execution,” S. v. Whiteside, supra. S. v. Shipman, 202 N. C., 518, 163 S. E., 657; S. v. Wrenn, 198 N. C., 260, 151 S. E., 261; S. v. Brady, supra; 15 C. J. S., 1059.

Furthermore, it is not necessary to join all tbe known members of a conspiracy in one bill of indictment. Eacb conspirator may be tried separately, if it appears upon tbe face of tbe. bill of indictment tbat there was another with whom tbe defendant conspired. 11 Am. Jur., 562; 15 C. J. S., 1060. Tbe co-conspirators may be named in tbe bill or alleged to be unknown. S. v. Abernethy, supra.

In proving a conspiracy, it is not necessary to establish tbe acts charged by direct proof. “It is not necessary to prove tbat tbe defendants came, together and actually agreed upon tbe unlawful purpose and its pursuit by common means.” 11 Am. Jur., 570. Direct proof of a conspiracy is rarely obtainable. It is said in S. v. Whiteside, supra: “It may be, and generally is, established by a number of indefinite acts, each of-which, standing alone, might have little weight, but, taken collectively, they point unerringly to tbe existence of a conspiracy. S. v. Wrenn, supra. When resorted to by adroit and crafty persons, tbe presence of a common design often becomes exceedingly difficult to detect. Indeed, tbe more skillful and cunning tbe accused, tbe less plainly defined are tbe badges which usually denote their real purpose. Under such conditions, tbe results accomplished, tbe divergence of those results from tbe course which would ordinarily be expected, tbe situation of tbe parties and their antecedent relations to eacb other, together with tbe surrounding circumstances, and tbe inferences legitimately deducible therefrom, furnish, in'the absence of direct proof, and often in tbe teeth of positive testimony to tbe contrary, ample ground for concluding tbat a conspiracy exists. 5 R. C. L., 1088.” S. v. Lea, supra; S. v. Shipman, supra.

It may be conceded tbat one conspirator was tbe original instigator of tbe unlawful plan or purpose; and may have more or less dominated bis co-conspirators, nevertheless all who knowingly participate in tbe execution of tbe unlawful purpose are equally guilty. “When a conspiracy is established, everything said, written, or done by any of tbe conspirators in execution or furtherance of tbe common purpose is deemed to have been said, done or written by every one of them, and maybe proved against each. It is immaterial when a defendant entered into or became a party to tbe conspiracy, or bow prominent or inconspicuous a part be took in tbe execution of tbe unlawful purpose; be is responsible to tbe fullest extent for everything tbat is said and done pursuant to tbe plot.” 11 Am. Jur., 571.

*495The crime charged in the second count of the bills consolidated herein, is that of obtaining property by false pretenses. The crime of false pretense is statutory, G. S., 14-100. The essential elements which the State must prove to the satisfaction of the jury beyond a reasonable doubt, in order to convict one of the crime of false pretense, are set forth in the opinion of Reade, J., in S. v. Phifer, 65 N. C., 321, as follows: “We state the rule to be, that a false representation of a subsisting fact, calculated to deceive, and which does deceive, and is intended to deceive, whether the representation be in writing, or in words, or in acts, by which one man obtains value from another, without compensation is a false pretense, indictable under our statute.” It is stated in the case of S. v. Howley, supra: “The constituent elements of false pretense as defined by the statute, and expressed in the Phifer case, supra, have been repeated without variation in numerous decisions of this Court, among which are: S. v. Dixon, 101 N. C., 741, 7 S. E., 870; S. v. Mangum, 116 N. C., 998, 21 S. E., 189; S. v. Matthews, 121 N. C., 604, 28 S. E., 469; S. v. Whedbee, 152 N. C., 770, 67 S. E., 60; S. v. Claudius, 164 N. C., 521, 80 S. E., 261; S. v. Carlson, 171 N. C., 818, 89 S. E., 30; S. v. Roberts, 189 N. C., 93, 126 S. E., 161.”

The defendant contends that since he was indicted with C. T. Junes, Johnnie Heath and J. R. Hunning, in bill No. 2397; and Jones died after the indictment was returned and before the trial, and the State took a nol. pros, as to Heath and Hunning during the progress of the trial; he is entitled to a nonsuit on both counts on the ground that Davenport could not conspire with himself and no one was left in the case with whom he could have conspired. We do not so hold. The identical point raised here was decided in the case of S. v. Alridge, 206 N. C., 850, 175, S. E., 191, in which the Court said: “The defendant, Lloyd Alridge, contends that he cannot be convicted of conspiracy because the defendant cannot conspire with himself, and as the State accepted Ed Alridge’s plea of guilty of assault, but not guilty of conspiracy, and as the jury acquitted Clarence Alridge, and as Wes Buchanan was dead, there was no one left in the case for him to conspire with. However, the bill charges that Lloyd Alridge conspired with Wes Buchanan. The fact that Buchanan was dead at the time of the trial had no effect upon the unlawful conspiracy if such had been entered into between him and defendant during his lifetime, and before the crime was committed. This point is decided against the contention of defendant in S. v. Diggs, 181 N. C., 550, 106 S. E., 834. See, also, S. v. Turner, 119 N. C., 841, 25 S. E., 810.” 15 C. J. S., 1060.

We deem it unnecessary to discuss the legal status of Heath and Hunning after the State took a nol. pros. as to them, since the evidence on this record tends to incriminate Jones and is sufficient to have carried the case to the jury as to Davenport and Jones on the charges contained *496in the bill, had Jones been alive at the time of the trial. It is disclosed by the evidence that Jones was the manager of Davenport’s Greenville Store. He received deposits and made loans. The store took in over $21,000.00 in deposits prior to his resignation as manager, 26 August, 1944. When demand was made on him for the withdrawal of at least one deposit, he informed the depositor he had loaned out her money and had no funds available for the payment of her check, which had been issued by the Greenville Store 11 August, 1944. The evidence also shows, according to the State’s Exhibit No. 269, that between 11 August and 25 August, 1944, this store received in deposits $9,271.50 and during the same period loaned out only $966.50. On 22 August, 1944, according to the evidence of the State and the defendant Davenport, Jones accepted for deposit the check of E. O. Muth in the sum of $1,900.00, which check Davenport had received from Muth and issued therefor a check for $1,900.00 on the Branch Banking & Trust Co., New Bern, N. C., a bank in which he had no account. Jones, as manager of the Greenville Store, deposited the Muth cheek in the Guaranty Bank & Trust Company, Greenville, N. C., and on 25 August, 1944, he issued a cheek in the name of Dixie Produce Co., by C. T. Jones, payable to cash for the entire sum of $1,900.00, and applied it on indebtedness to himself which he claimed Davenport owed him. This contention of the defendant cannot be sustained.

The defendant also contends that no one was misled by his statements or his advertisements to the effect that he was solvent, and his business had been investigated and found to be legal. He contends the truth or falsity of those statements is a matter of law, and says in his brief: “The aphorism, 'There are none so blind as those who will not see,’ applies here with full force and vigor, and it is argued that this blindness was caused solely by the dazzling light of 260 per centum per annum, and by no other consideration.” We concede the Davenport Plan to be one calculated to attract those interested in quick profits. It could also be conceded that a small loan.business might be operated in such a manner as to enable its operator to pay 5% interest per week by loaning the money at a higher rate of interest, if the operator could escape the penalty of our usury laws, but such a concession would bring no comfort to this defendant in view of the evidence disclosed on this record. The appealing defendant, his co-defendants, and other associates, knew they were taking in enormous sums of money, that not more than 10% of it was loaned out. They knew the produce stores were being used as a “front” for the loan business and were being operated at a loss. Moreover, according to the evidence disclosed on this record, exclusive of the New Bern Stores, the stores in Greenville, Rocky Mount, Kinston and Goldsboro received in deposits the sum of $85,643.70 and issued checks drawn on the Branch Banking & Tr.ust Oo., New Bern, N. C., for those *497deposits after Davenport bad notified tbe Rank not to pay any of bis checks drawn on tbat institution except those that came through the mails. Nowithstanding that fact, Davenport, his managers and other employees, in the meantime were' making a concerted effort to get deposits and were assuring the depositors the checks issued to them were good and would be paid on presentation at any time. Furthermore, of the above deposits, $37,730.50 were received and Davenport and his managers and employees issued checks therefor on the Branch Banking & Trust Co., New Bern, N. C., after Davenport’s account had been closed at that institution.

The defendant further contends that there is no evidence to support the charges against him because he offered evidence to the effect that he paid all withdrawal checks presented to him or to the Branch Banking & Trust Company, New Bern, N. C., prior to the time the representative of the State Bureau of Investigation began an examination of his loan operations. Even so, the evidence on this record tends to show that Davenport at no time during July or August, 1944, was earning sufficient income from his loan business to pay more than a small fractional part of the interest he had obligated himself to pay his depositors, even before taking into consideration the other expenses incurred in connection with the operation of his business. According to the evidence, he was operating on deposits and not earnings, and the records at each store clearly establish this fact. The contention of solvency on the part of Davenport at any time in July or August, 1944, is an absurdity in the light of the evidence as disclosed by the record.

The transcript of the evidence, exclusive of the exhibits, covers 935 pages of the record, which, including exhibits, contains 1,613 pages. Obviously, it is not practical for us to quote all or even a substantial part of the evidence. But when the evidence on this record is tested by the principles laid down in the authorities and decisions' cited herein, it is sufficient to sustain the verdict on all the counts in which this defendant is named.

It is also contended by the defendant that the conspiracy counts in the indictment, charge only a misdemeanor and as a.matter of law, are merged in the felony counts. A conspiracy to commit a felony is a felony in this jurisdiction. S. v. Abernethy, supra; S. v. Dale, supra; S. v. Ritter, 199 N. C., 116, 154 S. E., 62. Hence, the conspiracy counts are not merged in the felony counts as contended by the defendant. S. v. Dale, supra, and the cases cited therein.

The rulings of his Honor on the motions for judgment as of nonsuit will be upheld.

The record contains 333 assignments of error to the admission of evidence. We shall not undertake to discuss them at any great length. Most of them are so clearly without merit it is difficult to understand *498why they were brought forward. For example, exception after exception is brought forward which challenges the admissibility of evidence admitted as to the co-defendants, after the court had instructed the jury not to consider the testimony against Davenport.

The defendant excepts to the admission of testimony by W. R. Boyles, to the effect that after Davenport was arrested he sent him to employ Mr. Jesse Jones, an Attorney at Law of Kinston, N. C., to represent him. The witness testified he informed Mr. Jones that Davenport was going to “open more stores to get money to pay off down yonder.” The proffered employment was declined.

Mr. Jones was called as a witness and his testimony was offered only in corroboration of Boyles’ testimony. Mr. Jones testified that Boyles told him Davenport was going to open stores in Wilson and Smithfield to get money to pay off the people he owed in New Bern and Kinston. Whereupon he inquired how Davenport was going to get the money to pay the people in Smithfield and Wilson. Boyles said “he did not know.” Then he said “he was to get the money on the representation that he was going to loan it out.” The witness testified that he told Boyles, “Under your own statement, if that is what he is going to do he would be guilty of obtaining money under false pretenses.” This evidence is attacked on two grounds: (1) That it was a privileged communication arising out of the relationship of attorney and client; and (2) That it was an expert opinion to the effect that Davenport was guilty of conspiracy to defraud by false pretense and invaded the province of the jury.

The rule governing communications between attorney and client is stated in Stansbury on Evidence, Sec. 2, p. 108, et seq., the pertinent parts of which read as follows: “The relation of an attorney and client must have existed at the time of the disclosure. Thus there is no privilege when the relation had not begun, or the attorney had refused employment, or the relation had terminated. . . . Although the attorney need not have been consulted with a view to actual litigation, the communication must have been made in the course of seeking legal advice for a proper purpose; hence, no privilege exists where advice is sought in aid of a contemplated violation of law,” citing S. v. Smith, 138 N. C., 700, 50 S. E., 859; Eekhout v. Cole, 135 N. C., 583, 47 S. E., 655; and Hughes v. Boone, 102 N. C., 137, 9 S. E., 286.

The relationship of attorney and client did not exist between the witness and Davenport at the time the conference took place. Consequently, the first ground of objection cannot be sustained.

The second ground upon which the defendant challenges the admissibility of the evidence is likewise untenable, since the court excluded that portion of the evidence as to Davenport which constituted an opinion based on the statement made to Mr. Jones by Boyles.

*499There are numerous exceptions to the admission of evidence as to confessions made by several of the co-conspirators. These confessions were made in the absence of Davenport, and some of them contained statements purported to have been made by him.

On motion of counsel for Davenport, such confessions were ordered stricken from the record and the jury was instructed not to consider any statements made in the absence of the defendant, Davenport, by the defendants Whorton, Boyles, Powers, Heath, Hunning, or any other person out of court and prior to the time the witnesses were examined and testified in the trial of this cause. The court having ruled with the defendant on his motion to pursue this course, he cannot now complain.

There are exceptions to practically every word of the evidence which tends to show the manner in which the Davenport System was conducted, the advertisements carried in the papers, the books and records introduced in evidence, or as to the statements made by Davenport, his managers and employees to depositors as an inducement to get them to deposit their money.

The acts and declarations of each conspirator are admissible against every other member of the conspiracy. S. v. Whiteside, supra; S. v. Ritter, supra (197 N. C., 113, 147 S. E., 733); 11 Am. Jur., 571. Evidence as to the manner in which the business of Davenport was conducted, the statements made as an inducement to secure deposits, the assurance given of the solvency and the legality of the defendant’s loan business, the destruction and alteration of records, was competent as tending to establish a conspiracy. S. v. Whiteside, supra.

We have carefully examined all the exceptions to the admission of evidence, and they present no prejudicial error.

Exceptions are taken to certain remarks made by the trial judge during the course of the trial below.

We find nothing in the remarks of his Honor made in the course of the trial below, that lends support to the contentions of the defendant. The remarks were no more than were necessary and proper in a trial of this length. The court merely suggested from time to time that witnesses had already testified to certain matters and it was unnecessary for them to go over their testimony again and again. The remarks complained of were clearly made by the court in an effort to expedite the trial. But no one can read this record without being impressed with the fairness and patience of his Honor in the trial of this case.

We have thirty-eight assignments of error challenging the correctness of the charge of the court. A detailed consideration of them would serve no useful purpose. Exceptions are taken to the statement of contentions. An exception is taken to the preponderance of space and time given to the State’s contentions, in comparison to that given the contentions of the defendant. Exception is also taken to the court’s statement *500of the State’s evidence, which the defendant contends constitutes, in effect, an opinion on the part of the court adverse to defendant. These exceptions cannot be sustained.

The record shows that the trial judge inquired of counsel for the defendant and of the solicitor, at the close of his statement of the evidence, as to whether or not he should state the evidence more fully than he had already done. Counsel for the State and for the defendant assured his Honor it was not their desire for him to recapitulate the evidence further. Moreover, counsel for defendant requested the court to give a number of additional contentions for the defendant, which were given as requested.

The charge is in substantial accord with our decisions on the questions presented by the exceptions, and is free from prejudicial error.

It has been a laborious and tedious task to review the record on this appeal, which contains 440 assignments of error and over 1,700 exceptions. "We have carefully considered all the assignments of error brought forward and argued in the defendant’s brief, but we have of necessity discussed only those questions raised by the exceptions that we felt warranted discussion.

The manner in which the able solicitor performed his duties in the preparation and trial of this case, is highly commendable. The excellent judge who presided at the trial below, which lasted for five weeks, was careful and painstaking in the discharge of his duties; and the record supports the conclusion that no prejudicial error was committed in the trial below.

No error.