State v. Beal

Decision Date17 February 1932
Docket Number630.
Citation162 S.E. 561,202 N.C. 266
PartiesSTATE v. BEAL et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Cherokee County; Harding, Judge.

Charley Beal and others were convicted of the offenses of store-breaking and larceny, and they appeal.

No error.

Where defendants, who were acquitted upon counts of store-breaking and larceny and convicted upon count of knowingly receiving stolen goods, appealed, and venire de novo was awarded, pleas of former acquittal on counts of store-breaking and larceny held no defense on second trial, upon new bill stating same cause.

See also, 200 N.C. 90, 156 S.E. 140.

The three counts in the indictment charge the defendants (1) with breaking and entering a storehouse occupied by one Lee Shields wherein merchandise, etc., was kept, with intent therein to commit larceny in breach of C. S. § 4235; (2) with the larceny of the personal property of said Shields; and (3) with feloniously receiving the property knowing it to have been stolen.

The following entry appears in the record:

"Upon the call of this case for trial, the defendants and each of them entered a plea that they, and each of them, had theretofore been tried and acquitted of the offense of burglary, and of the offense of larceny, alleged in the bill of indictment, and they and each of them requested the court to submit an issue to a jury on the said plea of former acquittal. To the charge of receiving stolen goods knowing them to have been stolen the defendants pleaded not guilty. Upon such plea the State and defendants admitted and the Court found, the following facts:
"1. That the defendants were placed on trial at the March Term 1930, upon the following bill of indictment, to-wit 'State of North Carolina--Cherokee County--Superior Court--March Term, 1930. The jurors for the State, upon their oath present that Charley Beal, Hazel McMahan, Bose Fain, Mary Best, Jimmy Hunt, and Lee Ellen Harbin, late of the County of Cherokee, on the 31st day of March, 1930, with force and arms at and in the county aforesaid, a certain storehouse, shop, warehouse, banking house, counting house, and building, occupied by one Lee Shields, wherein merchandise, chattels, money, valuable securities were, and were being kept, unlawfully, willfully, and feloniously did break and enter with intent, the merchandise, chattels, money, valuable securities of the said Lee Shields then and there being found, to steal, take and carry away, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.
"'And the jurors for the State upon their oaths aforesaid do further present: that the said Charley Beal, Hazel McMahan, Bose Fain, Mary Best, Jimmy Hunt, Lee Ellen Harbin, afterwards, to-wit: on the day and year aforesaid, with force and arms at and in the county aforesaid, the following articles of personal property, to-wit: meat, lard, coffee, automobile fixtures, money and merchandise, goods and wares, of the value of fifty dollars, the goods, chattels, chattels and monies of one Lee Shields, then and there being found, feloniously did steal, take and carry away, contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State.
"'And the jurors for the State upon their oaths aforesaid do further present: that the said Charley Beal, Hazel McMahan, Bose Fain, Mary Best, Jimmie Hunt, and Lee Ellen Harbin, afterwards, to-wit: on the day and year aforesaid with force and arms at and in the county aforesaid, the said meat, lard, coffee, automobile fixtures, money, merchandise, goods and wares of the value of fifty dollars, of the goods, chattels and monies of the said Lee Shields before then feloniously stolen, taken and carried away, feloniously did receive and have the said meat, lard, coffee, money, merchandise, goods and automobile fixtures then and there, well knowing said goods, chattels and monies to have been feloniously stolen, taken and carried away, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.
"'Davis, Solicitor.'
"2. That the cause went to the jury after evidence having been offered and argument of counsel made, and the jury came in and rendered a verdict as follows: 'All of the defendants guilty on the third count of having these goods in their possession, knowing them to be stolen goods.' 'Not guilty as to the breaking and entering, and for larceny.'
"Upon the coming in of the verdict the defendants and each of them moved to set aside the verdict.
"Motion overruled by the presiding judge.
"The defendants in apt time excepted.
"The defendants moved the court for arrest of judgment and for the release of the defendants.
"Motion overruled. And defendants in apt time excepted.
"Upon the verdict the court rendered the following judgment: It is the judgment of the court that the male defendants, to-wit: Charley Beal, Bose Fain, and Jimmie Hunt, be confined in the jail of Cherokee County for a period of two years and assigned to work on the public roads of any county with which the commissioners may make arrangements; and that the female defendants Hazel McMahan, Mary Best, and Lee Ellen Harbin, be confined in the jail of Cherokee County for a period of two years.
"Thereupon defendants and each of them appealed to the Supreme Court of North Carolina.
"Before said judgment was pronounced but after coming in of the verdict the defendants moved to set aside the verdict and for a new trial. Motion overruled, and defendants excepted. The defendants then moved in arrest of judgment and for their release and discharge from custody, motion overruled and defendants excepted. Notice of appeal was given in open court, and further notice waived; appeal bond in the sum of $1,000 fixed for each defendant.
"The cause was regularly docketed in the Supreme Court and there heard upon the exceptions set out in the record to the Supreme Court, as appears in the record of the case in the Supreme Court.
"From the certified opinion of the Supreme Court, this court finds as a fact that the defendants' assignment of error based on the exceptions therein was sustained and that the Supreme Court ordered a venire de novo.
"At the March Term, 1931, the Solicitor sent a new bill in this case which bill was returned 'a true bill' by the grand jury, and this cause on such new bill is the same cause that was tried at the March Term, 1930, in which verdict was rendered and judgment pronounced and from which defendants appealed to the Supreme Court and which was heard in the Supreme Court and a venire de novo ordered. When this cause came on for trial counsel for defendants moved the court to go to trial on the three counts in the bill of indictment found at the March Term, 1930, and not in the bill found at the March Term, 1931.
"Upon the foregoing admissions and finding of fact the court is of opinion, and holds, that the pleas of defendants of former acquittal on the first and second counts in the bill of indictment of March Term, 1931, cannot be sustained, and declines to submit an issue to the jury on the former acquittal. To this ruling of the court the defendants and each of them excepted, and this constitutes defendants' exception No. 1.
"To the failure of the court to hold, on the foregoing admissions, that the defendants had been tried, and acquitted, of the offenses of burglary and of larceny alleged in the bill of indictment, the defendants except and this constitutes defendants' exception No. 2.
"The defendants moved the court that the trial proceed under the bill of indictment found at the March Term, 1930,
...

To continue reading

Request your trial
1 cases
  • State v. Correll
    • United States
    • North Carolina Supreme Court
    • December 15, 1948
    ...has been recognized and applied throughout the subsequent years. For full discussion of the subject see opinion by Adams, J. (1932) in State v. Beal, supra. other assignments of error relate to the failure of the court to give a special instruction requested by defendant pertaining to the r......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT