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North
Carolina Reports Page 141 The conspiracy
exception to the hearsay rule is strictly limited to those acts and
declarations made before success, failure or abandonment has
terminated the conspiracy. Krulewitch v. United States, 336 U.S.
440, 93 L.Ed. 790, 336 S.Ct. 716 (1949); State v. Branch, supra;
Annot., 4 A.L.R. 3d 671, 678 (1965). Moreover, it has been held that
absent special allegation and proof, the courts will not allow into
evidence statements that were made after the attainment of the
criminal project on the theory that there existed a secondary and
continuing conspiracy to conceal the fact of the first crime.
Kruiewitch v. United States, supra; Lutwak v. United States, supra;
Annot., 4 A.L.R. 3d 671, 746 (1965). [7] However,
several jurisdictions have recognized a res gestae exception to the
above stated rule for declarations and acts made immediately
following the achievement of the goal of the conspiracy. Annot., 4
A.L.R. 3d 671, 737. See State v. Wells, supra (dictum supports this
exception). And, as noted earlier, actions performed after the
termination of a conspiracy are admissible against all the
conspirators if they are probative and not meant as declarations.
Anderson v. United States, supra; Lutwak v. United States, supra.
Hence we find no error in allowing into evidence testimony that J.
V. Smith and Julia Pruitt took a shotgun to Smith's father's house
immediately after the murder. The only declarations made at this
time were requests by Smith and Tilley that Julia Pruitt drive Smith
to his father's home. These declarations, following immediately on
the heels of the murder, qualified as part of the res gestae and
were not, in any event, prejudicial. Defendants' exceptions 31-35,
39-45, 50, 58-60 are overruled. [8] The
conversation that J. V. Smith, Brady Tilley and Harold Jordan had
with Gail Bullins two weeks after the shooting was too remote in
time from the termination of the conspiracy to come within the res
gestae exception. However, there is evidence that all the defendants
were present and able to hear and understand this discussion. Thus,
assuming this conversation had been inculpatory, it was admissible
as an admission against those defendants who participated in the
conversation However, we believe this evidence was not prejudicial. State v. Branch, supra. Gail Bullins and these defendants were
Page 142 good friends.
Their conversation with her was not necessarily incriminating.
Defendants merely asked her the same questions that any friend,
knowing of her involvement in the police investigation, might have
asked. She admitted other friends had made similar inquiries. Thus,
this evidence was not inconsistent with defendants' innocence and
defense counsel properly cross-examined Date Printed: September 20, 1999
North Carolina Reports on this point.
Defendants' exceptions 55-56A along with Assignment of Error No. 5
are overruled. Date Printed: September 20, 1999
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