State v. Freeman

• Decision Date: 26 March 1913
• Parties: STATE v. FREEMAN.
• Court: North Carolina Supreme Court

77 S.E. 780

162 N.C. 594

STATE v. FREEMAN.

Supreme Court of North Carolina

March 26, 1913

Appeal from Superior Court, Franklin County; Cooke, Judge.

Sterling Freeman was convicted of selling intoxicating liquors, and he appeals. Reversed and remanded, with directions.

An allegation in an indictment for the offense of selling intoxicating liquors as to the time of the sale is immaterial and a conviction may be sustained upon proof of the sale to the person named at any time within two years prior to the filing of the indictment.

The defendant is indicted for selling one pint of spirituous liquor on or about November 15, 1911, to B. H. Meadows.

It was admitted on the trial that the defendant had been acquitted at a prior term of court upon an indictment for selling one pint of spirituous liquor to B. H. Meadows on or about December 5, 1911.

B. H Meadows, witness for the state and the only witness examined testified "that he knew the defendant Sterling Freeman that they worked at the same livery stable during the fall of 1910 and the spring of 1911; that the defendant would frequently, at request of witness, go out and buy a bottle of whisky for witness; that he would give him the money, and defendant would bring him back the bottle of whisky; that he did not know where defendant got the whisky; that this continued the whole time they worked together at the stable; that it was almost an everyday occurrence; that witness did not know of the source from which defendant secured the whisky." On cross-examination he stated "that he was a witness at last January court against defendant, when the defendant was acquitted; that he testified to the same state of facts at that time that he testified in this trial; that he cannot remember the exact date of any particular sale, but that the defendant, a colored man, usually drank out of the same bottle with the witness."

The defendant asked the court to charge that, if the defendant was tried at January term of this court upon the same state of facts as at this term, his plea of former trial and acquittal was good. The court refused to give this charge, and defendant excepted. There was a verdict of guilty, and from the judgment pronounced thereon the defendant appealed.

W. M. Person, of Louisburg, for appellant Attorney General Bickett and T. H. Calvert, for the State.

ALLEN J.

A single question is presented by this appeal, and that is as to the right of the defendant to have the instruction prayed for given upon the plea of former acquittal. There are certain principles bearing upon this question upon which there is no difference of opinion:

(1) That a person cannot be tried twice for the same offense.

(2) That the offenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proven in the trial of the other, although some of the same acts may be necessary to be proven in the trial of each.

(3) That, if the violation of law is not continuous in its nature, separate indictments may be maintained for each violation, and under indictments for selling intoxicating liquors one may be prosecuted and convicted for each separate sale made to the same person, and whether made on the same or different days.

(4) That upon the trial of such indictment the state may offer evidence of more than one sale to the same person, and the defendant cannot compel an election, and that it is within the discretion of the court to deny or allow the motion to elect.

(5) That the allegation in the indictment as to the time of sale is immaterial and a conviction may be sustained upon proof of a sale to the person named at any time within two years prior to the finding of the presentment, if there is one, and, if not, then within two years prior to the finding of the indictment.

(6) That the burden is on the defendant to sustain his plea of former acquittal or former conviction by the preponderance of the evidence.

(7) That the defendant may introduce evidence to prove his plea, or he may rely on the evidence introduced by the state.

The point of divergence is as to the meaning of the term, "same offense," and as to what must be proven to sustain the plea. "The true criterion," said Nash, J., in State v. Birmingham, 44 N.C. 122, "by which the question is to be decided is whether the evidence necessary to support the second indictment would have been sufficient to convict the defendant on the first." Ruffin, J., says, in State v. Nash, 86 N.C. 651, 41 Am. Rep. 472: "The true test is as stated in Rex v. Vandercomb: Could the defendant have been convicted upon the first indictment upon proof of the fact, not as brought forward in evidence, but as alleged in the record of the second?" This principle is quoted by Justice "Walker in State v. Hankins, 136 N.C. 622, 48 S.E. 594, and he proceeds to show that it unjustly restricts the rights of the defendant. He says: "The true principle by which to test the sufficiency of the plea of former acquittal as a bar is said to be this: Unless the first indictment was such as the defendant might have been convicted upon it by proof of facts contained in the second, an acquittal on the first can be no bar of the second. Rex v. Vandercomb, 2 Leach, 716; State v. Birmingham, 44 N.C. 120; State v. Williams, 94 N.C. 891. This statement of the principle (which was taken from the opinion of Justice Buller in Rex v. Vandercomb) has, we think, been justly criticised, as it may exclude the right of the defendant by proof of facts other than those alleged in the second indictment to show the identity of the two offenses, and it has been suggested that the rule should be that, unless the evidence as brought forward to prove the allegations of the second indictment would be sufficient to convict upon the first, the plea of former acquittal or conviction should not avail the defendant (State v. Nash, 86 N.C. at page 656, 41 Am. Rep. 472), but this would not remove the fault unless the rule is further extended so as in terms to include the right of the defendant to prove the identity of the offenses charged in the two indictments, which might otherwise appear to be different. In order to support a plea of former acquittal, it is not always sufficient that the two prosecutions shall grow out of the same transactions; but they must be for the same offense, the same both in law and fact." In 12 Cyc. 280, the author says that "a test almost universally applied to determine the identity of the offenses is to ascertain the identity in character and effect of the evidence in both cases."

If we adopt either rule, the defendant was entitled to the instruction prayed for. Tested by the first, and keeping in mind, as said in State v. White, 146 N.C. 609, 60 S.E. 505, "that the date charged in the bill is immaterial," and that each indictment charges the sale of one pint of spirituous liquor to B. H. Meadows, it cannot be questioned that "the evidence necessary to support the second indictment would have been sufficient to convict the defendant on the first." Tested by the second, which requires identity of the offense "in law and in fact," or by the third, which requires identity of evidence and the same result follows, as the law was the same under both indictments, the indictments identical, and the only witness introduced by the state said "that he testified to the same state of facts at that time (the former trial) as he testified in this trial." It may be that the defendant is guilty of 100 violations of law. If so, he ought to have been convicted on the first trial, but, in fact, only one transaction was proven, as the witness for the state testified that he could not remember the date of any sale. The state has had the advantage of offering all the evidence in its possession against the defendant, has not been required to give dates of sale so that the defendant might be able to defend, and this evidence has been passed upon by 12 "good and lawful men," and the state ought not now to be permitted to try the same defendant on another indictment charging the same offense and on the same evidence.

The case of Olmstead v. State, 92 Ala. 64, 9 So. 737, is so much like this that we quote from it at some length "Appellant was convicted under an indictment which charged him with selling vinous, spirituous, and malt liquors without a license and contrary to law. The evidence was that...