State v. . Whiteside

Stacy, O. J.,

after stating tbe case: Robert Whiteside, apparently alone and unassisted, attempted to rob tbe Imperial Theatre in Asheville on Saturday night, 28 January, 1933. Did Pete Cannon aforetime agree to help bim? This is tbe gist of tbe crime charged against bim and of which be stands convicted.

A conspiracy is tbe unlawful concurrence of two or more persons in a wicked scheme' — tbe combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means.

S. v. Lea,

203 N. C., 13 , 164 S. E., 737 ;

S. v. Ritter,

197 N. C., 113 , 147 S. E., 733 . Indeed, tbe conspiracy is tbe crime and not its execution.

S. v. Wrenn,

198 N. C., 260 , 151 S. E., 261 . Compare

Hyde v. U. S.,

225 U. S., 347 . “As soon as tbe union of wills for tbe unlawful purpose is perfected, tbe offense of conspiracy is completed.”

S. v. Knotts,

168 N. C., 173 , 83 S. E., 972 .

There is a distinction between tbe offense to be committed and tbe conspiracy to commit tbe offense.

S. v. Brady,

107 N. C., 822 , 12 S. E., 325 . In tbe one, tbe

corpus delicti

is tbe act itself; in tbe other, it is tbe conspiracy to do tbe act. Note, 14 Ann. Cas., 156.

Direct proof of tbe charge is not essential, for such is rarely obtainable. 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

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detect. Indeed, tbe more skillful and cunning the accused, the less plainly defined are the badges which usually denote their real purpose. Under such conditions, the results accomplished, the divergence of those results from the course which would ordinarily be expected, the situation of the parties and their antecedent relations to each other, together with the surrounding circumstances, and the inferences legitimately dedueible therefrom, furnish, in the absence of direct proof, and often in the teeth of positive testimony to the contrary, ample ground for concluding that a conspiracy exists. 5 R. C. L., 1088.

So, in the instant case, notwithstanding the positive testimony of Whiteside to the contrary and the rather “broken reed” upon which the State is compelled to rely, we think the evidence is sufficient to carry the case to the jury. Its credibility was for the twelve.

The keystone of the State’s evidence is the alleged conversation had between Ralph McDuffie and the defendant Cannon at the “Pastime Pool Room,” some five or six hours before the attempted robbery. It is suggested that McDuffie’s interest in the case arises out of a guilty conscience, and a desire to shield himself, rather than from any urge to see the law enforced. He was asked on cross-examination if he had not had a fight with Cannon over a girl in Charlotte sometime prior thereto. His reply was, that he had not. The general reputation and character of the State’s witness, like that of the defendant’s, seems to have been somewhat shady or spotted. He is well known to the “law,” to use his vernacular, which means he is well known to the officers of the law, who regard him as a suspicious character. His testimony is not very impressive, but its credibility was for the jury.

If the defendant has been erroneously convicted, as he contends, he must attribute it to his evil associations. His appeal was to the jury, and we are not able to help him. Our jurisdiction is limited to reviewing, upon appeal, decisions upon any matter of law or legal inference. Const., Art. IV, sec. 8.

No error.