State v. Dills, 652.

• Decision Date: 20 May 1936
• Docket Number: No. 652.,652.
• Citation: 210 N.C. 178,185 S.E. 677
• Court: North Carolina Supreme Court
• Parties: STATE. v. DILLS et al.

185 S.E. 677

210 N.C. 178

STATE.

v.DILLS et al.

No. 652.

Supreme Court of North Carolina.

May 20, 1936.

Appeal from Superior Court, Guilford County; Pless, Judge.

Ralph Dills and Luther E. Osborne were convicted of robbery with firearms, and they appeal.

No error.

See, also, 208 N.C. 313, 180 S.E. 571.

This is a case in which the defendants, Ralph Dills and Luther E. Osborne, were tried in the superior court of Guilford county at the December criminal term, 1935, on a charge of robbery with fire arms.

At a prior term in the same county they had been tried upon the charge of murder in the first degree; the state contending that they killed William Davis while in an effort to perpetrate a robbery. Of this charge they were acquitted. This case was tried before his honor, J. Will Pless, Jr., judge presiding.

Upon the calling of the case for trial, the defendants and each of them, through their counsel, entered a plea of former jeopardy and refused to plead to the bill of indictment until the plea of former jeopardy was determined. Thereupon the court held that the plea constituted a refusal to plead to the bill of indictment, and therefore was a plea of "Not Guilty."

The court further held that, under the general plea of "Not Guilty" interposed by the court, the defendants and each of them are entitled to submit such evidence as may be pertinent upon: the question of former jeopardy as well as to the charges contained in the above indictment.

To this ruling of the court the defendants excepted, and this is the defendants' first exception.

After a conference between the solicitor for the state, counsel for the defendants, and his honor, the following proceedings were held:

"Upon the issue of former jeopardy submitted to the jury, the jury finds the following facts and returns same as its Special Verdict.

"That the defendants were indicted by the Grand Jury of Guilford County for the murder of William Davis on October 13th, 1934, and were tried upon the bill of indictment, which said bill of indictment is incorporated as part of this Special Verdict by reference and made a part of this Special Verdict by reference and made a part thereof. (See copy of same attached here). That said trial took place in the Superior Court of Guilford County in October, 1935, at which time the jury rendered a verdict of 'Not Guilty.'

"That at the said trial the State offered evidence tending to show that the defendants were together on the night of October 13th, 1934, and that in the attempted robbery of William Davis and his father, Ed Davis, killed the former with a pistol or some other deadly weapon, by striking the said William Davis over the head with the pistol or some other deadly weapon, causing his death from the said blow; and that at the said time and place the defendants assaulted Ed Davis, by striking him several blows with a shot gun, and took from the person of Ed Davis the sum of Three Hundred and Ninety-one ($391.00) Dollars in money, and from the person of William Davis the sum of Six ($6.00) Dollars in money.

"That in the said trial, Ed Davis appeared as a witness for the State, and testified that a man looking exactly like the defendant, Luther E. Osborne, and a man looking exactly like the defendant, Ralph Dills, were the two persons who had robbed him and had robbed and killed his son.

"That Hon. F. Donald Phillips, Judge Presiding, charged the jury in effect that if they found that the defendants were at the scene of the alleged robbery and killing as a result of an agreement or conspiracy theretofore made, or if they found that either of the defendants killed William Davis in the attempted robbery and the other was present aiding and abetting, that they would render a verdict of 'Guilty of murder in the first degree'; and otherwise, they would render a verdict of 'Not guilty.'

"That the said jury, after considering the evidence of the said Ed Davis and of other witnesses tending to corroborate him, and upon the charge of the Court, as above outlined, rendered a verdict of 'Not guilty.'

"That following the trial and acquittal of the defendants, Luther E. Osborne and Ralph Dills, as above set forth, the Court ordered the defendants, Ralph Dills and Luther E. Osborne, held to be dealt with on a charge of robbery with firearms under the statute as to Ed Davis, the same being section 4267 (a) of Code 1935 of North Carolina. That, in obedience to said order, said defendants were so held, and the Solicitor for the State subsequently thereto prepared a bill of indictment charging said defendants with the crime of robbery with firearms. That the Grand Jury returned a true bill upon said charge, which said bill is hereto referred to and is part of the record in this case, and made a part hereto, (copy of said bill is attached hereto), the same as if specifically set out herein.

"That at the regular term of Superior Court of Guilford County for the trial of criminal cases held on the 16th day of December, 1935, said case was set for trial on Wednesday, December 18th. That said case was called for trial upon the bill of indictment referred to. That upon being called upon to plead, the defendants andeach of them, through their counsel, entered a plea of former jeopardy, and refused to plead to the bill of indictment in other terms until that plea be disposed of. That the Court declined to have said plea determined first, and again requested the defendants to plead to the bill of indictment in the light of said holding, which the defendants refused to do. Thereupon, the Court held that the said plea was tantamount to a general plea of 'Not guilty, ' and that under the holding of the Court, the defendants were entitled to contest the question of their guilt upon the merits of the case and also to offer such testimony as may be competent upon their plea of former jeopardy. To said rulings, the defendants in apt time excepted. Thereupon, the jury was selected, sworn and empanelled, and the following evidence offered, to-wit:

"The State offered evidence tending to show that on the night of October 13th, 1934, as William Davis was driving homeward, accompanied by his father, Ed Davis, and at a point approximately five miles south of Greensboro, the car was forced towards the ditch and made to stop by the occupants of a Ford roadster.

"That after being stopped, one of the men in the Ford car, and whose face was partially concealed with a handkerchief or other means, drew a shot gun upon the said Ed Davis, and at the same time another occupant of the Ford car came to the scene carrying a pistol, that both Ed Davis and William Davis were stricken by the two men above referred to and were robbed, the said Ed Davis being robbed of approximately $391.00 and the said William Davis of $6.00.

"That in the perpetration of said robbery, Ed Davis received a blow on the head requiring sixteen stitches and that the said William Davis received a blow at the back of the head which later caused his death. That Ed Davis identified the defendant, Luther E. Osborne, as being the man with the shot gun at the scene of said robbery and the person who actually took his pocket books containing his money from his pockets as he was lying on the ground after being stricken. That he further stated that the defendant, Ralph Dills, looked exactly like the man carrying the pistol and who accompanied and assisted the man he identified as Osborne in the said robbery and murder.

"The foregoing testimony was used by the State in the trial of the case against the defendants, Luther E. Osborne and Ralph Dills, in which they were charged with the murder of William Davis on the night of October 13th, 1934, it being at the same time and place referred to in the testimony of the witness in this case, with other testimony of like character; which said evidence the defendants in this case introduced to sustain their plea of former jeopardy.

"That the bill of indictment upon which the defendants were tried for murder did not charge an assault or attempted robbery upon the person of Ed Davis, nor did it otherwise refer to him except that his name was listed as a State's witness. That said bill of indictment was a valid bill of indictment, that the defendants were tried before a competent jury, duly empaneled and sworn to make true deliverance of the case in a court of competent jurisdiction, and the defendants were acquitted. That judgment was entered on the verdict of acquittal, which judgment still remains in full force and effect and has not been reversed or made void.

"We find the foregoing facts and, if on such facts, the Court is of the opinion that the...