State v. Ballard

• Decision Date: 09 February 1972
• Docket Number: No. 56,56
• Citation: 280 N.C. 479,186 S.E.2d 372
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Marvin Edward BALLARD.

Page 372

186 S.E.2d 372

280 N.C. 479

STATE of North Carolina v. Marvin Edward BALLARD.

No. 56.

Supreme Court of North Carolina.

Feb. 9, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. R. S. Weathers, for the State.

William S. Geimer, Asst. Public Defender, for defendant appellant.

BOBBITT, Chief Justice.

'It is a fundamental and sacred principle of the common law, deeply imbedded in our criminal jurisprudence, that no person can be twice put in jeopardy of life or limb for the same offense. State v. Prince, 63 N.C. 529; State v. Hicks, 233 N.C. 511, 64 S.E.2d 871. It was incorporated in the Bill of Rights of the Federal Constitution. United States Constitution, Amendment V. While the principle is not stated in express terms in the North Carolina Constitution, it has been regarded as an integral part of the 'law of the land' within the meaning of Art. I, sec. 17. State v. Mansfield, 207 N.C. 233, 176 S.E. 761.' State v. Crocker, 239 N.C. 446, 449, 80 S.E.2d 243, 245 (1954).

Overruling prior decisions, the Supreme Court of the United States held in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that the double-jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. Hence, federal as well as state double-jeopardy standards control decision.

Ballard's plea of double jeopardy is based on his trial before Judge McKinnon at December 7, 1970 Criminal Session of Cumberland Superior Court on an indictment returned at the October 12, 1970 Criminal Session which charged that, on August 21, 1970, he 'unlawfully, wilfully and feloniously, having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: A 38 caliber pistol whereby the Life of Kane Parsons was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal and carry away One Thousand, Five Hundred and One Dollars and Seventeen Cents ($1,501.17) in money, to wit: United States Currency and Coins of the value of One Thousand, Five Hundred and One Dollars and Seventeen Cents ($1,501.17) from the Person of Kane Parsons property of the Great Atlantic and Pacific Tea Company, Incorporated, . . ..' (Our italics.)

An 'Addendum to the Record' provides the only information before us as to what occurred at the trial at December 7, 1970 Criminal Session. This discloses that, upon Ballard's plea of not guilty to the above quoted indictment, the jury was duly selected, sworn and empaneled; that Ballard made a motion to dismiss as in case of nonsuit at the end of the State's evidence and again at the end of all the evidence but assigned no ground and presented no argument in support of the motions; that each of Ballard's motions was overruled; that later the court allowed Ballard's motion to dismiss as in case of nonsuit and started the reasons therefor as follows:

'After the argument and at the beginning of the charge, the court for the first time read the Bill of Indictment and determined that it alleged that Kane Parsons was endangered and threatened and further it alleged the taking and carrying away of money from the person of Kane Parsons. Upon examination of the Bill of Indictment, the court being of the opinion that there is a fatal variance between the allegation and the proof, it is ordered that the defendant's motion for judgment as of nonsuit be allowed, with leave to the State to proceed upon a correct charge and Bill of Indictment. The defendant is to be held in lieu of Bail in the amount of five thousand dollars ($5000.00) pending the drawing of a new charge.'

Whether correct or erroneous, the judgment of nonsuit had the force and effect of a verdict of 'not guilty' as to the armed robbery for which Ballard was then being tried, namely, the armed robbery charged in the indictment returned at the October 12, 1970 Criminal Session. G.S. § 15--173: State v. Stinson, 263 N.C. 283, 286, 139 S.E.2d 558, 561 (1965).

The question is whether this second prosecution of Ballard for the armed robbery allegedly committed by him in the A & P store on August 21, 1970, violates his constitutional guarantee against double jeopardy.

'(J)eopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been impaneled and sworn to make true deliverance in the case.' State v. Bell, 205 N.C. 225, 228, 171 S.E. 50, 52 (1933); State v. Crocker, supra 239 N.C. at 449, 80 S.E.2d at 245; State v. Birckhead, 256 N.C. 494, 504, 124 S.E.2d 838, 846 (1962).

Unquestionably, at December 7, 1970 Criminal Session, jeopardy attached in respect of the crime charged in the indictment returned at October 12, 1970 Criminal Session. The judgment of nonsuit barred further prosecution For that crime.

Both indictments are based on G.S. § 14--87 which, in pertinent part, provides: 'Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony . . ..'

The indictments returned at October 12, 1970 Criminal Session and at January 4, 1971 Criminal Session are identical except the italicized portions thereof. Each indictment charged all elements of the crime of armed robbery as defined in G.S. § 14--87. Each charged the crime was committed on August 21, 1970, and involved the theft of $1,501.17 of the money of the Great Atlantic and Pacific Tea Company, Incorporated. The indictment returned at October 12, 1970 Criminal Session charged that the 'life of Kane Parsons was endangered and threatened,' and that the $1,501.17 was taken from the 'person of Kane Parsons.' The indictment returned at January 4, 1971 Session charged that the 'lives of Pat Britt and Nolan Smith were endangered and threatened,' and that the $1,501.17 was taken 'from the presence and person of Pat Britt and Nolan Smith.'

In respect of 'armed robbery' as defined in G.S. § 14--87, '(f)orce or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense.' State v. Mull, 224 N.C. 574, 576, 31 S.E.2d 764, 765 (1944). Accord: State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944); State v. Lynch, 266 N.C. 584, 586, 146 S.E.2d 677, 679 (1966). Variance between the allegations of the indictment and the proof in respect of the ownership of the property taken is not material. State v. Rogers, 273 N.C. 208, 212--213, 159 S.E.2d 525, 528--529 (1968). '(I)n an indictment for robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property.' State v. Sawyer, supra, 224 N.C. at 65--66, 29 S.E.2d at 37. The gravamen of the offense is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery.

The double-jeopardy test applicable on the present record is the 'same-evidence test,' which is alternative in character. This test is defined in State v. Hicks, 233 N.C. 511, 516, 64 S.E.2d 871, 875 (1951), in opinion by Justice Ervin, as follows: 'Whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment (citations), or whether the same evidence would support a conviction in each case. (Citations.)'

In the present case, the first alternative does not apply. Evidence sufficient to prove only The facts alleged in the second indictment would not have sustained a conviction under the first indictment. No fact concerning Kane Parsons was alleged in the second indictment.

The second alternative, whether The same evidence would support a conviction in each case, is the determinative test in the present case. Application of this test requires a review of the evidence offered at Ballard's trial on the second indictment.

The State's evidence, which consists of the testimony of five witnesses, is summarized below.

James Richard Strickland: On August 21, 1970, Strickland was an employee of the Ramsey Street A & P, and he observed defendants Marvin Ballard and Virgil Gaines, and a third man, 'at the door for about five seconds.' He 'then turned back to do the work he was doing.' Someone said 'freeze.' Strickland turned around and saw 'Gaines standing at his side with a gun up in the air at a distance of about two feet.' He 'looked toward the office and saw a man up there with a gun pointed down in the office.' That man was Marvin Ballard. Someone said, 'Hurry up, chunk.' Ballard got 'the money out of the office.' He told everyone to get on the floor, and Strickland complied. Ballard proceeded outside to a waiting car. The entire incident lasted 'four or five minutes.'

Nolan B. Smith: About 8:55 p.m. Smith and Mrs. Patricia Britt, fellow employees of the A & P, 'had just finished counting the till.' Smith 'heard a voice say 'freeze,' and saw something move at a side window of the office inside which he was standing.' '(Smith's) office was a raised area located at the opposite end of the line of cash registers from the one that has been referred to as the first cash register.' Marvin Ballard was standing 3 1/2 feet from him with a gun in his hand. Ballard first said, 'Let me have it,' and then, 'Hurry up, I mean business, let me have the money.' Smith stood there and Mrs. Britt ...