State v. Clemmons, 291.
| Decision Date | 31 October 1934 |
| Docket Number | No. 291.,291. |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. CLEMMONS. |
Appeal from Superior Court, Pitt County; Daniels, Judge.
Claude Clemmons was convicted of second degree murder, and he appeals.
New trial.
Criminal prosecution tried upon indictment charging the defendant with the murder of one Louise Roberson.
The defendant entered pleas of not guilty and of former jeopardy or former acquittal.
The facts with respect to the defendant's plea of former jeopardy or former acquittal are not in dispute. On a prior day of the same term of court the defendant was tried upon an indictment charging him with felonlously setting fire to and burning a dwelling house on the night of January 24, 1934, the property of one M. H. Whichard, occupied at the time by Cora Roberson and her three children, including her infant daughter, Louise Roberson. The jury returned a verdict of not guilty.
In the present case, the defendant is charged with the murder of Louise Roberson on the night of January 24, 1934. The evidence offered on the hearing was the same as that adduced at the trial of the defendant on the charge of arson, except that the evidence of the fatal burning of Louise Roberson was incidental on the charge of arson, whereas it constitutes an essential element in the indictment for murder. But the evidence as to what the defendant did was the same on both trials.
Upon this phase of the matter, the court instructed the jury as follows: "Gentlemen, the arson case in which the defendant was acquitted and the case you are now trying upon the charge of murder embrace two different offenses, and the fact the defendant was acquitted on the charge of arson has no bearing upon the guilt or innocence of the defendant in this indictment for murder which we are now trying." Exception.
Verdict: Guilty of murder in the second degree.
Judgment: Imprisonment in the state's prison at hard labor for a term of thirty years.
Defendant appeals, assigning errors.
William J. Eundy, of Greenville, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. P. Seawell and T. W. Bruton, Asst Attys. Gen., for the State.
The case is controlled by the decision in State v. Bell, 205 N. C. 225, 171 S. E. 50. There was error in withholding from the jury's consideration the defendant's plea of former jeopardy or former acquittal. State v. King, 195 N. C. 621, 143 S. E. 140; State v. Ellsworth, 131 N. C. 773, 42 S. E. 699, 92 Am. St. Rep. 790.
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State v. Birckhead
...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 consti......
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Brock v. State of North Carolina
...v. State, 1923, 142 Md. 464, 121 A. 354; Commonwealth v. McCan, 1931, 277 Mass. 199, 178 N.E. 633, 78 A.L.R. 1208; State v. Clemmons, 1934, 207 N.C. 276, 176 S.E. 760, and State v. O'Brien, 1934, 106 Vt. 97, 170 A. 7 Allen v. State, 1906, 52 Fla. 1, 41 So. 593 (during first trial defendant ......
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State v. Midgett
... ... It only ... remains to notice the authorities cited by the defendant. He ... relies upon the decisions in State v. Clemmons, 207 ... N.C. 276, 176 S.E. 760; State v. Bell, 205 N.C. 225, ... 171 S.E. 50, and particularly upon what was said in State ... v. Rawlings, 191 ... ...
- State v. Midgett, 3.