State v. Bell
| Citation | 171 S.E. 50,205 N.C. 225 |
| Decision Date | 11 October 1933 |
| Docket Number | 2. |
| Parties | STATE v. BELL. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Macon County; Clement, Judge.
Robert Bell was convicted of conspiracy to murder and of murder, and he appeals.
New trial granted.
Person who furnished conveyance and remained distance from scene of attempted robbery and murder held conspirator.
Criminal prosecution tried upon indictment charging the defendants, in one count, with conspiracy to murder George Dryman, and, in a second count, with the murder of the said George Dryman. The defendant, Robert Bell, entered pleas of not guilty and former jeopardy.
The deceased was a farmer, eighty-four years of age, living in Macon county with his three maiden daughters. It was known that he kept a sum of money, which later proved to be about $2,300, in a trunk in his house. The defendants conceived the idea of robbing the old man of his money, so on the night of January 23, 1933, they first went to the home of Ernest Stamey and there masked themselves. They then got in Robert Bell's car and were driven to a point near the Dryman home. Here, the other defendants left the car with the understanding that Robert Bell should drive down the Georgia road and wait there for his confederates and pick them up after they had accomplished the robbery.
In attempting to perpetrate the robbery, one of the conspirators struck George Dryman over the head with a board, inflicting injuries from which he died about three weeks later. They did not get the money.
At the April term, 1933, Macon superior court, which was a two weeks' term, it seems that the solicitor sent two bills before the grand jury, each containing two counts.
In the first bill, J. R. Bell, Ernest Stamey, Robert Bell, Louise Stamey, Clyde Woods, and Mell Holden were charged (1) with conspiring to burglarize the home of George Dryman, and (2) with burglariously robbing said home.
It is alleged that some of the defendants, including the defendant Robert Bell, were tried upon this indictment during the first week of the term, and that "at the close of the evidence, the solicitor for the State took a judgment of not guilty as to the defendant, Robert Bell." The record is silent as to what the verdict was as to the other defendants then on trial.
In the second bill sent before the grand jury, J. R. Bell, Robert Bell, Ernest Stamey, Clyde Woods, and Mell Holden were charged (1) with the conspiracy to murder George Dryman, and (2) with the murder of the said George Dryman.
The record states that Ernest Stamey, Clyde Woods, and Robert Bell were tried during the second week of the term upon this bill. J. R. Bell and Mell Holden were not put on trial for the reason that J. R. Bell had not been taken and Mell Holden was dead.
Upon the call of the case, the defendant, Robert Bell, entered a plea of former jeopardy, and offered to show that at the same term of court he had been tried and acquitted on the first bill above mentioned. The court ruled that his plea was not good and excluded the evidence. Exception.
The three defendants then on trial were convicted of murder in the second degree, and from the judgment pronounced thereon of "imprisonment in the State's Prison of not less than 25 nor more than 30 years," the defendant, Robert Bell, appeals, assigning errors.
Edwards & Leatherwood, of Bryson City, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty Gen., for the State.
The case was tried upon the theory that if the defendants conspired to burglarize or to rob the home of George Dryman and a murder were committed by any one of the conspirators in the attempted perpetration of the burglary or robbery, each and all of the defendants would be guilty of the murder. This is a correct proposition of law. State v. Donnell, 202 N.C. 782, 164 S.E. 352; State v. Miller, 197 N.C. 445, 149 S.E. 590. It is provided by C. S. § 4200 that a murder "which shall be committed in the perpetration or attempt to perpetrate any *** robbery, burglary or other felony, shall be deemed to be murder in the first degree."
The evidence discloses that the conspiracy was to rob, and not to murder, George Dryman; that the homicide was committed in the attempted perpetration of the robbery; and the defendant Robert Bell, offered to show, under his plea of former jeopardy, that he had theretofore been tried and acquitted on the charge of a conspiracy to rob the deceased.
It is clear that the attempted robbery and the homicide grew out of the same transaction, and so far as Robert Bell is concerned, the facts required to convict him on the second indictment would necessarily have convicted him on the first. State v. Freeman, 162 N.C. 594, 77 S.E. 780, 45 L. R. A. (N. S.) 977; State v. Hankins, 136 N.C. 621, 48 S.E. 593; State v. Lawson, 123 N.C. 740, 31 S.E. 667, 68 Am. St. Rep. 844; State v. Cross and State v. White, 101 N.C. 770, 7 S.E. 715, 9 Am. St. Rep. 53; State v. Nash, 86 N.C. 650, 41 Am. Rep. 472.
It is true, there is a difference between a conspiracy to burglarize a house with intent to commit robbery therein, and a conspiracy to burglarize it with intent to commit murder ( State v. Allen, 186 N.C. 302, 119 S.E. 504), but here the murder was incidental to the attempted robbery, as all the evidence shows, and upon this theory the case has been tried.
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