State v. Beal, 630.

• Citation: 162 S.E. 561, 202 N.C. 266
• Case Date: February 17, 1932
• Court: United States State Supreme Court of North Carolina

162 S.E. 561

202 N.C. 266

STATE
v.
BEAL et al.

No. 630.

Supreme Court of North Carolina

February 17, 1932

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 [162 S.E. 562] 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.

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