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State v. Tilley, 292 N.C. 132 (1977)


 

North Carolina Reports
STATE v. TILLEY, 292 N.C. 132 (1977)
232 S.E.2d 433
 

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
and as an admission by silence against non-participating defendants. Lutwak v. United States, supra; 2 Stansbury's N.C. Evidence, 167, 179 (Brandis Rev. 1973).
 

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
STATE v. TILLEY, 292 N.C. 132 (1977)
232 S.E.2d 433
 

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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