State v. Birckhead

Citation256 N.C. 494,124 S.E.2d 838
Decision Date21 March 1962
Docket NumberNo. 577,577
Parties, 6 A.L.R.3d 888 STATE, v. Charles M. BIRCKHEAD.
CourtUnited States State Supreme Court of North Carolina

Atty. Gen. T. W. Bruton for the State.

Arthur L. Lane, Fayetteville, and Earl Whitted, Jr., Goldsboro, for defendant.

MOORE, Justice.

Defendant assigns as error the denial of his plea of former jeopardy.

The date of the alleged offense is 29 December 1960. At the February Term 1961 the grand jury returned a true bill of indictment against defendant for an assault with intent to commit rape. During the second week of that term defendant was placed on trial on this charge. He was arraigned and pleaded not guilty. A jury was sworn and empaneled. The State offered evidence. In the course of prosecutrix's testimony the following transpired:

'Q. What, if anything, did this man do with his private parts?

'A. He just, he just, had intercourse with me, I guess.

'Q. Did this man ever penetrate you with his private part?

'A. Yes.

'Q. How long did this man stay in your bed room?

'A. Maybe ten minutes; I guess ten or fifteen minutes. I am not sure how long it was.

'Court: Members of the jury, go back to the jury room a minute.

'The jury retired.

'Solicitor Braswell: If it please the Court, may we make this general statement to the Court. Now that we have heard this much of the prosecuting witness' testimony, and heard the facts as reported to us at this time, now that we have heard from the witness stand, we desire that the Court order a mistrial and we desire to submit to the Grand Jury a bill of indictment for the Capital Crime of Rape, and desire that this man be held without privilege of bond.

'Court: All right, take the order of the Court: It is ordered that a Juror be withdrawn, Juror No. 12, and a mistrial is ordered to the end that justice might be served and that a correct charge may be presented to the Grand Jury.

'It is Further Ordered that the defendant be held without privilege of bond pending Grand Jury indictment.'

At the March Term 1961 the grand jury returned a true bill of indictment against defendant for rape. This indictment is based on the same occurrence and involves the same female as the assault bill. The rape case was called for trial during the second week of the April Term 1961. Defendant entered a plea of former jeopardy which was heard and rejected. The trial proceeded; defendant was convicted and sentenced to life imprisonment.

Captain Leon Allen, who took part in the investigation on 29 December 1960, testified for the State at the second trial and stated he talked to prosecutrix on the day of the occurrence and it was his 'impression from that conversation that there had been no penetration.' The prosecutrix stated on cross-examination at the second trial: 'I testified in the preliminary hearing that I did not feel the man's penis in me. When I testified that, I thought that this man meant with my hands, but I did feel him but not with my hands.' Other witnesses testified at the second trial that prosecutrix told them on the day of the occurrence that she had been penetrated.

'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. * * * 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, 80 S.E.2d 243.

It was an established principle at common law that a conviction or acquittal of a lesser degree of a criminal offense was a bar to a subsequent prosecution of a higher degree of the same offense. '* * * (I)f a man be acquit generally upon an indictment of murder, auterfoits acquit is a good plea to an indictment of manslaughter of the same person, or e converso, if he be indicted of manslaughter, and be acquit, he shall not be indicted for the same death, as murder, for they differ only in degree, and the fact is the same.' 2 Hale P. C. 246. See also Chitty's Blackstone, 19th London Ed., Book IV, p. 336.

In the United States it is the accepted rule that 'prosecution for and a conviction or acquittal of part of a single crime is a bar to any subsequent prosecution based upon the whole or any part of the same crime, * * *. Also, a conviction of a lesser offense bars a subsequent prosecution for a greater offense, in all those cases where the lesser offense is included in the greater offense, and vice versa. But a former trial and acquittal or conviction will not be a bar to a subsequent prosecution unless the defendant could have been convicted on the same evidence in the former trial, of the offense charged in the subsequent trial.' 1 Wharton's Criminal Law and Procedure (1957), pp. 294, 295, citing many cases. Accord: 15 Am.Jur., Criminal Law, s. 386, pp. 60-62.

North Carolina is strongly committed to this principle. In State v. Midgett, 214 N.C. 107, 198 S.E. 613, Stacy, C. J., quoted with approval from Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794, the following: 'When the facts constitute two or more offenses, wherein the lesser offense is necessarily involved in the greater--as an assault is involved in an assault and battery, as an assault and battery is involved in an assault and battery with intent to commit felony and as a larceny is involved in a robbery--and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second.' The rule in this jurisdiction has been stated in this wise: 'Where the second indictment is for a crime greater in degree than the first, and where both indictments arise out of the same act, it is held that an acquittal or conviction for the first is a bar to a prosecution for the second.' 15 N.C. Law Review 55. This is hereinafter referred to as the 'lesser degree rule.'

The following cases illustrate the application of the rule by this Court. It was held that a conviction for assault and battery barred a subsequent prosecution for riot. State v. Ingles, 2 Haywood 4, 5, 3 N. C. 4. Where defendant was indicted for robbery, and had been previously tried on charges of burglary and larceny, arising out of the same occurrence as the alleged robbery, and had been acquitted of burglary and convicted of larceny, it was held that larceny is a lesser grade or degree of the offense of robbery and conviction of the former bars prosecution of the latter. State v. Lewis, 9 N.C. 98. Where defendant had been acquitted on charges of conspiracy to burglarize a home and of burglariously robbing the home, it was held that the trial judge should have heard and disposed of defendant's plea of former jeopardy at the trial of defendant on a murder indictment--an occupant of the home having been killed in the perpetration of the alleged burglary and robbery. State v. Bell, 205 N.C. 225, 171 S.E. 50. After defendant's acquittal on an indictment for arson, it was error for the court to withhold from the consideration of the jury defendant's plea of former accquittal in a trial for murder of one who was fatally burned in consequence of the alleged arson. State v. Clemmons, 207 N.C. 276, 176 S.E. 760. In State v. Cross, 101 N.C. 770, 778, 7 S.E. 715, 719, it is said: '* * * (W)hen an offense is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution for the other.'

The only exception to this well established rule is the holding in some cases that conviction of a minor offense in an inferior court does not bar a prosecution for a higher crime, embracing the former, where the inferior court did not have jurisdiction of the higher crime. State v. Albertson, 113 N.C. 633, 18 S.E. 321; State v. Shelly, 98 N.C. 673, 4 S.E. 530; State v. Huntley, 91 N.C. 617.

We now consider the question as to whether or not assault with intent to commit rape is a lesser degree of the offense of rape. It was formerly held that they were separate offenses and the former was not a lesser degree of the latter. In State v. Jesse, 20 N.C. 95 (1838), defendant was charged with rape and assault with intent to commit rape in separate counts in the same bill of indictment. He was acquitted of rape and convicted of assault with intent to commit rape. Judgment on the assault count was arrested because of a fatal defect in the bill of indictment. Defendant was later charged with assault with intent to commit rape, involving the same transaction, in a legally sufficient bill of indictment. He pleaded former acquittal. On appeal it was held that prosecution under the second indictment was not barred by the acquittal on the rape count in the first. It would seem that there was valid basis for this decision, under the circumstances there presented, without reaching the question as to whether the assault charged was a lesser degree of rape. However, the Court states inter alia: '* * * both the crime of rape, and that of assault with intent to commit rape are felonies created by statute. But they owe their existence to different statutes; the former to the statute of Westminster, 2nd, and the latter, to the statute of this State of 1823.' Further: '* * * an indictment for doing a criminal act, is not supported by proof of an intent to do that act, although the intent to perpetrate, and the perpetration, be each a crime, and of the same grade. * * * (A)n acquittal upon an indictment charging the doing of an act is not a bar to an indictment charging the intent to do it.' Parenthetically, both rape and assault with intent to commit rape were crimes at common law. Chitty's Blackstone, 19th London Ed., Book IV, ...

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