#### STATE v. P. Q. MOORE and J. J. FURLONG.

(Filed 19 April, 1933.)

1. Indictment O c — Indictment will not be quashed for admission of incompetent evidence if there was competent evidence before grand jury.

' Where it appears that some of the witnesses before the grand jury were qualified and some disqualified, or some of the testimony was competent and some incompetent, the courts will not go into the barren inquiry of how far evidence which was incompetent or witnesses who were disqualified contributed to the findings of a true bill, and defendant’s motion to quash will not be allowed unless all the witnesses were disqualified or all the evidence was incompetent.

*5462. Blackmail B d — Evidence of guilt of violation of O. S., 4291, held sufficient to overrule defendants’ motions of nonsuit.

In this prosecution for sending letters through the United States mail demanding that large sums of money be placed in an envelope addressed to a fictitious person and left at a certain filling station in violation of O. S., 4291, the evidence of the guilt of both defendants is held sufficient to be submitted to the jury.

Stacy, C. X, took no part in the decision of this case.

Appeal by defendants from *Devin, J.,*at September Term, 1932, of New HaNOVek.

No error.

At September Term, 1932, of tbe Superior Court of New Hanover County, a bill of indictment in words as follows, was returned by tbe grand jury, as a true bill :

“State of North Carolina — County of New Hanover.

Superior Court — September Term, 1932.

Tbe jurors for tbe State upon tbeir oatb present, tbat P. Q. Moore and John J. Furlong, late of tbe county of New Hanover, on 30 May, 1932, both before, and since said date, with force and arms, at and in tbe county aforesaid, did unlawfully and wilfully and feloniously, secretly and in malice, witb intent to deceive and to defraud without probable cause or excuse, knowingly send, or cause to be delivered, through tbe U. S. mail, to Mrs. J. K. Wise, Wilmington, N. 0., two certain letters, one dated 30 May, 1932, and tbe other 9 June, 1932, containing menaces demanding tbat tbe said Mrs. J. K. Wise, in tbe first deposit tbe sum of $25,000, and in tbe second letter tbe sum of $20,000, at a designated filling station, threatening death or serious bodily barm to herself and other members of her family, all witb tbe intent to extort or gain from tbe said Mrs. J. K. Wise, tbe said sums of money, against tbe form of tbe statute in such case made and provided, and against tbe peace and dignity of tbe State.

And tbe jurors for tbe State, upon tbeir oatb, do further present: Tbat on said days and at said dates, in said county and State, with force and arms, tbe said P. Q. Moore and John J. Furlong, and others unknown to tbe jurors, did unlawfully and wilfully and feloniously combine, confederate, conspire and agree, each witb tbe other, secretly and in malice, witb intent to deceive and to defraud, without probable cause or reasonable excuse, and in furtherance and confirmation thereof, on 30 May, 1932, and on 9 June, 1932, knowingly send or cause to be sent and delivered through tbe U. S. mails to Mrs. J. K. Wise, Wilmington, N. C., two certain letters containing menaces demanding tbat tbe said Mrs. J. H. Wise, in tbe first letter deposit tbe sum of $25,000, and in the second letter tbe sum of $20,000, at a designated filling sta*547tion, threatening death or serious bodily harm to herself and other members of her family, all with intent to extort or gain from the said Mrs. J. K. Wise, the said sums of money, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”

On the back of this bill of indictment there were endorsed the names of thirty-four persons as witnesses for the State. A check against each of these names indicated, as shown by an endorsement by the foreman of the grand jury, that each of these witnesses had been sworn by the foreman and had testified before the grand jury.

Before the indictment was read, and before the defendants or either of them had otherwise pleaded thereto, and before the jury had been selected and empaneled for the trial of the action, the defendant, P. Q. Moore, who was present in court, filed his plea in abatement, and motion to quash the indictment, which was in writing and is as follows:

“Now comes the defendant, P. Q. Moore, through his counsel, L. Clayton Grant and Aaron Goldberg, and moves the court that he be permitted to file his plea in bar before pleading, and to have the same disposed of according to law, that is:

This defendant, P. Q. Moore, avers that the bill of indictment in this cause returned by the grand jury was, according to his information and belief, obtained by the reading before said grand jury while considering said bill, the stenographic notes as transcribed and read by the court reporter of the testimony of John J. Furlong, codefendant of the said P. Q. Moore, before Honorable H. A. Grady, judge sitting as a committing magistrate on the preliminary hearing of this cause.

Wherefore, this defendant avers that the bill of indictment was obtained by improper and incompetent testimony, and that being predicated upon incompetent testimony as aforesaid, that such fact does bar the further prosecution under said bill of indictment, and that this plea is a complete bar to this action.

Wherefore, the defendant, P. Q. Moore, prays that this plea be accepted and adjudged a bar to further prosecution of this cause under said indictment.”

The motion was overruled, and the defendant excepted.

Before the indictment was read, and before the defendants or either of them had otherwise pleaded thereto, and before the jury had been selected and empaneled for the trial of the action, the defendant, John J. Furlong, who was present in court, filed his plea in abatement, and motion to quash the indictment, which was in writing and is as follows:

“Now comes the defendant, John J. Furlong, and through his counsel, Herbert MeClammy and John A. Stevens, offers this plea in abatement, and moves the court to quash the indictment in this action, upon the following grounds:

*5481. That the bill of indictment in this cause was found upon incompetent and disqualified testimony, to wit:

The declaration of John J. Furlong given at the hearing before Honorable Henry A. Gradyj sitting as committing magistrate, and stated before the grand jury by Dwight McEwen, court stenographer.

2. And defendant further submits to this Honorable Court that under the law of North Carolina, where there are *two defendants on*trial, a bill of indictment cannot be found by the testimony of one of the defendants against the other, and that this principle is especially applicable to a ease like this when the testimony of one defendant is recited by a stenographer who took the notes of such testimony.”

The motion was overruled, and the defendant excepted.

After the pleas and motions of the defendants had been overruled, the court at the request of counsel for each of the defendants, directed Dwight McEwen, the court reporter, to furnish to counsel for the record a statement of what transpired before the grand jury, while he was present as a witness for the State. This statement appears in the record, and is as follows:

“While I was testifying before the grand jury as a witness for the State in this action, I was asked if I had the testimony of Mr. J. J. Furlong, taken before his Honor, Henry A. Grady, judge, sitting as a magistrate, in the preliminary hearing. I replied that Mr. Furlong, upon the advice of his counsel, voluntarily tendered himself for examination by the solicitor, and that the transcript which I then held in my hands, was a true and accurate transcript of Mr. Furlong’s testimony given at the preliminary hearing, under oath, and by me personally transcribed. I was asked whether or not it was admissible as evidence. I replied that I was a witness before the grand jury under a subpoena, and had no authority to offer any legal advice, and would not attempt to do so. I suggested that the solicitor or the judge was available to advise the grand jury. I was then instructed by the foreman to read to the grand jury the evidence of Mr. J. J. Furlong, which I did. I also read portions of the evidence of other witnesses at the preliminary hearing before Judge Grady. I did this under the instructions of the foreman of the grand jury.

I had the evidence taken at the preliminary hearing with me when I went before the grand jury, under a subpoena, as a witness for the State. I took the evidence with me under the instructions of the solicitor.”

After their pleas in abatement; and their motions to quash the indictment, on the grounds stated therein, had been overruled by the court, each of the defendants entered a plea of “Not Guilty,” and the trial of the issues raised by those pleas proceeded.

The evidence at the trial showed that two letters were delivered by United States mail carriers, one on or about 30 May, and the other on *549or about 9 June, 1932, at tbe borne of Mrs. J. K. Wise, in tbe city of Wilmington, N. G. Botb letters were in envelopes addressed in typewriting to Mrs. Wise, and bad been received in tbe mail at tbe United States postoffice in Wilmington, and there delivered to tbe carriers whose routes in tbe city included tbe borne of Mrs. Wise. Tbe letters were typewritten, and directed Mrs. Wise to place large sums of money — one, $25,000, and tbe other $20,000 — in packages addressed to Captain Eay-nee, and to deliver said packages to E. L. Johnson at bis filling station, located on a public highway in New Hanover County, about seven miles from Wilmington. Each letter contained threats of death or serious bodily barm to Mrs. Wise or to members of her family, if she did not comply with tbe directions contained in tbe letters. These directions were specific and in great detail. Mrs. Wise was warned not to communicate or attempt to communicate with tbe police or witb friends in an effort to discover or apprehend tbe writers of tbe letters. Sbe was warned of tbe fate of tbe Lindbergh baby, whose parents bad disobeyed instructions, and sought tbe aid of tbe police in their efforts to find their baby, without paying tbe ransom demanded by its abductors. Mrs. Wise received these letters and promptly consulted her attorney and a friend, to whom sbe delivered tbe letters. Tbe matter was reported to tbe sheriff of New Hanover County, who at once began an official investigation. Botb tbe letters -were identified, and offered in evidence by tbe State.

A package was prepared and addressed to Captain Mai Eaynee and on or about 11 June, 1932, delivered to E. L. Johnson at bis filling-station as directed in tbe letters received by Mrs. Wise. This package did not contain either of tbe large sums of money demanded in tbe letters, but did contain money. During tbe morning of 15 June, 1932, some person who gave bis name as “Willie Wilson,” called E. L. Johnson, at bis filling station, by telephone, and asked if be bad a package for Captain Eaynee. Upon being informed by Mr. Johnson that there was a package at tbe filling station for Captain Eaynee, this person requested Mr. Johnson to take good care of tbe package, saying that be would call for it during tbe afternoon or tbe next morning.

About two hours after tbe telephone conversation, in which tbe person who bad called Mr. Johnson was informed by him that there was a package at tbe filling station for Captain Eaynee, William Bennett, a Negro, who is a resident of tbe city of Wilmington, called at tbe filling-station and presented to Mr. Johnson a note. This note was typewritten, was addressed to “Mr. Johnson,” and was signed “Captain Eaynee.” Tbe note, which was offered in evidence by tbe State, is as follows: “Send tbe package for me by bearer. Enclosed find five dollars for your trouble. There will be more later.” Mr. Johnson retained the five dollars which was enclosed witb tbe note, and delivered tbe package to *550William Bennett, who left tbe filling station at once, driving in tbe direction of Wilmington. After bis return to Wilmington be was arrested. Tbe package bad been delivered to bim by Mr. Johnson, was found by tbe officers in bis borne.

There was evidence tending to show that tbe note which was delivered to Mr. Johnson at the filling station was delivered to William Bennett, in Wilmington, by tbe defendant, John J. Furlong, in tbe presence of tbe defendant, P. Q. Moore; that tbe note was written on tbe same typewriter as that on which tbe letters received by Mrs. Wise were written; and that both tbe letters and tbe note were written on a typewriter in tbe office of tbe defendant, P. Q. Moore. There was also evidence tending to show that tbe defendants were and bad been for many years residents of tbe city of Wilmington, and close and intimate friends. They were together during tbe morning of 15 June, 1932, and from time to time during tbe day. Tbe defendant, P. Q. Moore, gave to tbe defendant, John J. Furlong, tbe money which tbe latter gave to William Bennett at tbe time be delivered to bim tbe note addressed to Mr. J obnson.

Tbe defendant, John J. Furlong, as a witness in bis own behalf, testified that tbe defendant, P. Q. Moore, gave bim tbe note and tbe money which be gave to William Bennett. This defendant denied that be bad written or caused to be written tbe letters received by Mrs. Wise, and testified that be did not know tbe contents of tbe said letters or of tbe note which be delivered to William Bennett, at tbe request of tbe defendant, P. Q. Moore.

Tbe defendant, P. Q. Moore, as a witness on bis own behalf, denied that be bad given to tbe defendant, John J. Furlong, tbe note which tbe latter bad delivered to William Bennett. He testified that be bad not written or caused to be written tbe letters which were received by Mrs. Wise, or tbe note which was delivered by William Bennett to R. L. Johnson, at tbe filling station.

At tbe close of all tbe evidence, each defendant moved for judgment as of nonsuit The motions were denied, and both defendants excepted.

There was a verdict of guilty as to each defendant, with a recommendation by tbe jury to tbe court of mercy.

From judgment that tbe defendants be confined in tbe State’s prison, tbe defendant, P. Q. Moore, for a term of three years, and tbe defendant, John J. Furlong, for a term of two years, both defendants appealed to tbe Supreme Court.

*Attorney-General Brummitt and Assistant Attorneys-General Seawell and Siler for the State.*

*L. Qlayton Grant and Aaron Goldberg for defendant, Moore.*

*Herbert McGlammy and John A. Stevens for defendant, Furlong.*

*551CONNOR, J.

Tbe assignments of error on this appeal cannot be sustained. There was no error in the refusal of the trial court to hear or consider the pleas in abatement and the.motions to quash the indictment, upon the grounds stated therein, although the pleas were tendered and the motions were made in apt time; nor was there error in the refusal of the court to allow the motions of the defendants at the close of all the evidence for judgment as of nonsuit, as to each defendant.

It is well settled as the law of this State that when a bill of indictment has been returned by the grand jury as a true bill, upon testimony all of which was incompetent, or upon the testimony of witnesses all of whom were disqualified by statute or by some well settled principle of law in force in this State, the indictment will be quashed on the motion of the defendant made in apt time; but when some of the testimony was competent and some incompetent, or some of the witnesses heard by the grand jury were qualified and some disqualified, the court will not go into the barren inquiry of how far testimony which was incompetent or witnesses who were disqualified contributed to the finding of the bill of indictment as a true bill. *S. v. Levy,*200 N. C., 586, 158 S. E., 94; *S. v. Mitchem,*188 N. C., 608, 125 S. E., 190; *S. v. Coates,*130 N. C., 701, 41 S. E., 706. This is the general rule in other jurisdictions. 31 C. J., 808, and cases cited.

The evidence offered at the trial was sufficient to support the allegations in the indictment. It tended to show a violation of C. S., 4291, by the defendants and was properly submitted to the jury. The judgment is affirmed. C. S., 4173.

No error.

Stacy, O. J., took no part in the consideration or decision of this case.