State v. Meadows, 497

• Decision Date: 12 January 1968
• Docket Number: No. 497,497
• Parties: STATE of North Carolina v. Ernest MEADOWS, Defendant.
• Court: North Carolina Supreme Court

Page 638

158 S.E.2d 638

272 N.C. 327

STATE of North Carolina v. Ernest MEADOWS, Defendant.

No. 497.

Supreme Court of North Carolina.

Jan. 12, 1968.

R. Roy Hawfield, Monroe, for defendant appellant.

BOBBITT, Justice.

Defendant assigns as error the overruling of his plea of 'former conviction' by Brock, J., at May 1966 Mixed Session.

Defendant based his plea of 'former conviction' on the fact the indictment for felonious assault to which he pleaded guilty at May 1965 Session, and the indictment for murder returned at February 1966 Session and on which defendant was tried at the October-November 1966 Session, arose out of the same transaction, namely, the alleged shooting of Ellis Newman by defendant on February 5, 1965.

Defendant pleaded guilty to the said crime of felonious assault and was sentenced therefor prior to May 31, 1965, the date of the death of Ellis Newman.

Although identical in respect of certain elements, the crimes charged in the two bills of indictment are distinct offenses both in law and in fact.

The crime of felonious assault, created and defined by G.S. § 14--32, consists of these essential elements: (1) An assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) Not resulting in death. State v. Hefner, 199 N.C. 778, 155 S.E. 879; State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Jones, 258 N.C. 89, 128 S.E.2d 1.

In felonious assault, '(t)he injury must be serious but it must fall short of causing death.' State v. Jones, supra. Too, a specific intent To kill is an essential element of felonious assault. State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626.

With reference to the murder indictment, this statement by Mr. Justice Van Devanter in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, is apposite: 'The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.'

The trial on said murder indictment was for second degree murder or manslaughter as the evidence might warrant. 'A specific intent To kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter.' State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

'If, after a prosecution for an offense, a new fact supervenes for which the defendant is responsible, and which changes the character of the offense, and, together with the previous facts, constitutes a new and distinct crime, an acquittal or conviction of the first offense is no bar to an indictment for the other distinct crime.' 1 Wharton's Criminal Law and Procedure, § 145, p. 353. Accord: 21 Am.Jur.2d, Criminal Law, § 186; 22 C.J.S. Criminal Law § 287c, p. 753.

A plea of guilty is 'equivalent to a conviction.' State v. Brinkley, 193 N.C. 747, 138 S.E. 138; Harrell v. Scheidt, Comr. of Motor Vehicles, 243 N.C. 735, 92 S.E.2d 182; State v. Stone, 245 N.C. 42, 95 S.E.2d 77.

The plea in bar asserted by defendant is Autrefois convict, 'formerly convicted.' Decision on this appeal relates exclusively to such plea. We do not consider or decide whether an acquittal of defendant after trial on the felonious assault bill of indictment would constitute a bar to the subsequent prosecution for homicide.

In Commonwealth v. Vanetzian, 350 Mass., 491, 215 N.E.2d 658 (1966), a defendant, prior to the victim's death, was indicted for assault and battery by means of a dangerous weapon, and pleaded guilty to and was sentenced for this criminal offense. Subsequently, when placed on trial for murder, the defendant pleaded Autrefois convict. In overruling defendant's said plea, the Supreme Judicial Court of Massachusetts, in opinion by Spalding, J., said: 'Both the common law and our statutes provide that a person may not be twice put in jeopardy for the same offence. (Citations.) But it is clear that this principle can have no application where, as here, at the time of the first indictment the facts upon which the second indictment is based had not yet occurred. (Citations.)'

In Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 207 A.2d 814 (1965), the defendant, prior to the victim's death, had pleaded Nolo contendere to an indictment charging aggravated assault and robbery. Later he was indicted and adjudged guilty of murder in the first degree and sentenced to life imprisonment. In Habeas corpus proceedings, he sought relief on the ground his plea of Nolo contendere to aggravated assault and robbery constituted a bar to the subsequent prosecution for homicide. In rejecting defendant's plea of Autrefois convict, the Supreme Court of Pennsylvania, in opinion by Eagen, J., said: 'If, on the day he was convicted of aggravated assault and battery, the victim had already died and the appellant was Then guilty of murder, his prosecution and conviction for the assault and battery would have barred his subsequent prosecution for murder. * * * However, when the first conviction occurred, the appellant was not then guilty of murder and could not have been prosecuted for that crime, since no such crime had as yet been committed. When the death occurred, a new and distinct crime was consummated for which he was not before guilty or prosecuted. The case of Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184, 14 L.R.A.,N.S., 209 (1907), is factually identical and controlling.'

Decisions in accord include the following: State v. Wilson, 85 Ariz, 213, 335 P.2d 613; State v. Randolph, 61 Idaho 456, 102 P.2d 913; Hill v. State, 141 Tex.Cr.R. 169, 149 S.W.2d 93; Powell v. State, 253 Ala. 41, 42 So.2d 693; State v. Wheeler, 173 La. 753, 138 So. 656. No decision reaching a contrary result has come to our attention. Both reason and authority support Judge Brock's ruling in respect of defendant's said plea of 'former conviction.'

Defendant also assigns as error the denial of his motion(s) for judgment as in case of nonsuit. Defendant having offered evidence, the only question is whether the court erred in the denial of the motion made by defendant at the close of all the evidence. G.S. § 15--173; State v. Leggett, 255 N.C. 358, 121 S.E.2d 533.

The State's evidence consists of the testimony of Elree Robinson, Elgee Gray, Ben Stewart, and Eugene F. Hamer.

The testimony of Dr. Hamer, a medical expert, relates solely to the injuries sustained by Newman on February 5, 1965, and the cause of his death on May 31, 1965. Dr. Hamer testified: 'The cause of (Newman's) death on May 31, 1965, was from complications, indirectly as a result of the gunshot wound of the neck which caused total paralysis from the neck down. The wound was on his neck, on one side.'

Robinson testified in substance as follows: Robinson, 'half-brother' of defendant, drove his car to defendant's house on Friday, February 5, 1965, about 10:00 p.m., in order to try to crank defendant's car. Newman went with him. Robinson parked his car in defendant's yard in position to connect jumper cables to the batteries of the two cars. While they were trying, unsuccessfully, to crank defendant's car, Newman and defendant 'had some words about a hat.' Newman told defendant he had better leave the car alone; that he could crank it the next day when they came home from work; and that defendant had been 'in some of that man's gin anyway' and would not know what he was doing that night. Defendant then left, saying, 'Wait a minute, I'll be right back.' Defendant went into the house, came to the door with a shotgun, fired it once, the load from the gun hitting Newman in the neck. When shot, Newman was 'beside the car,' facing Robinson. Robinson asked defendant what was wrong. Defendant cursed and went back into the house. He came out again, without the shotgun, and said, 'The damn rascal ain't dead?' Robinson replied, 'No, he's not dead.' Robinson asked Newman whether he could help him. Newman said, 'No,' and 'slid back by the car with his head against the left wheel of (defendant's) car.' The porch light at defendant's house was on. Newman did not have a knife in his hand. Robinson did not see Newman 'have a piece of iron or hammer.' After the shooting, Robinson 'ran over to (his) mother's and had her call an ambulance and the Police Department.' Two police officers answered the call.

Gray and Stewart, police officers, testified in substance as follows: Upon arrival, they found Newman lying on the ground, leaning back against some old tires and the front wheel of a car that was parked in the yard. Newman was shot in the neck. He was 'bleeding in the back of the neck where there was a wound.' Newman 'was talking but not moving any.' Stewart, on cross-examination, testified: 'I remember seeing a hammer somewhere but not where Newman was. I think there were about three or four feet between the porch and the car. It seems to me there was a hammer on the porch.' Gray, under cross-examination, testified: 'I did not see any hammer.'

Defendant's evidence consists of his own testimony. He testified in substance as follows: He had told Robinson, '(his) brother,' to come to his house Friday night, February 5, 1965, to help him start his car. Robinson got there about 10:30 p.m., accompanied by Newman. Defendant's car was 'about three feet' from his porch. Defendant took his tool box, went to his car, 'took the hammer and pounded the wire on the post of the battery,' and then 'laid the hammer down on the fender of the car.' Robinson was in his car, 'with the lights on and the motor running.' Newman switched on the motor of defendant's car. Whereupon defendant hollered, 'I ain't ready yet,' and 'Man, are you crazy?' The fan on the motor had cut defendant's wrist. Whereupon Newman cursed defendant and his car. Defendant told Newman to leave. Newman...