State v. Crisp

• Citation: 125 S.E. 543,188 N.C. 799
• Decision Date: 19 December 1924
• Docket Number: 581.
• Parties: STATE v. CRISP.
• Court: United States State Supreme Court of North Carolina

125 S.E. 543

188 N.C. 799

STATE v. CRISP.

No. 581.

Supreme Court of North Carolina

December 19, 1924

Appeal from Superior Court, Graham County; Ray, Judge.

Rollin Crisp was convicted of feloniously breaking into storehouse of another with intent to commit larceny, and he appeals. New trial.

Criminal prosecution tried upon an indictment charging the defendant with the unlawful, willful, and felonious breaking and entering of a certain storehouse in the possession of G. W Shuler, sheriff of Graham county, with intent to commit the crime of larceny therein, in violation of the provisions of C. S.§ 4235. From an adverse verdict and judgment pronounced thereon, the defendant appeals, assigning errors.

T. M Jenkins and R. L. Phillips, both of Robbinsville, and Moody & Moody, of Murphy, for appellant.

J. S Manning, Atty. Gen., and Frank Nash, Asst. Atty Gen., for the State.

STACY J.

At the same term of court and on the day before the present trial was had, the defendant was tried under a different bill of indictment in which the possession of the property was laid in one C. D. Mort. At the close of the evidence on the first trial and on motion of the defendant, there was a judgment as of nonsuit entered under C. S. § 4643. Thereupon the solicitor sent the present bill before the grand jury in which the possession of the property is laid in G. W. Shuler, sheriff of Graham county. When called upon to plead, the defendant entered a plea of former acquittal or former jeopardy and not guilty.

His plea of former acquittal or former jeopardy was properly overruled. State v. Drakeford, 162 N.C. 667, 78 S.E. 308; State v. Harbert, 185 N.C. 760, 118 S.E. 6; State v. Gibson, 170 N.C. 697, 86 S.E. 774.

The law applicable is stated in 12 Cyc. 266, as follows:

"If the accused is acquitted by direction of the court on the ground of material variance, he cannot plead the acquittal as a bar, for he has never been in jeopardy, and when tried on a new indictment the crime then alleged is not the same crime as in the former indictment. And it has been held that if the accused on the prior trial maintained that the variance was material and the court directed a verdict of acquittal on that ground, he cannot subsequently on his plea of former acquittal allege or prove that it was not material."

And this is supported by a long citation of authorities, including, among others, from this state, State v. Birmingham, 44 N.C. 120; State v. Revels, 44 N.C. 200. The Revels Case was disapproved in State v. Lytle, 117 N.C. 799, 23 S.E. 476, on another point, but not on the question now in hand. See, also, State v. Hooker, 145 N.C. 581, 59 S.E. 866; State v. Nash, 86 N.C. 650, 41 Am. Rep. 472; State v. Jesse, 20 N.C. 105.

In construing the statute, his honor stated in the presence of the jury that the intent with which the defendant entered the...