State v. Gibson

• Decision Date: 03 November 1915
• Docket Number: (No. 308.)
• Citation: State v. Gibson, 170 N.C. 697, 86 S.E. 774 (N.C. 1915)
• Court: North Carolina Supreme Court
• Parties: STATE. v. GIBSON.

86 S.E. 774

170 N.C. 697

STATE.

v.GIBSON.

(No. 308.)

Supreme Court of North Carolina.

Nov. 3, 1915.

Appeal from Superior Court, Rockingham County; Cline, Judge.

Gibson was convicted of obtaining a note by false pretenses, and appeals. No error.

The defendant was indicted for obtaining a note by false pretenses. When the case was here before 169 N.C. 326, 85 S. E. 7), the indictment was for obtaining money by the false pretense, while the evidence show ed that it was not money, but the note, that had thus been procured, and, holding that there was a material variance, as will appear from a reading of the case, we directed a nonsuit. At May term, 1915, the solicitor sent another bill upon which the defendant was convicted, and from the judgment he has appealed to this court.

J. M. Sharp, of Madison, and W. Reade Johnson, of Winston-Salem, for appellant.

The Attorney General and T. H. Calvert. Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above). [1] The defendant has set up as a defense in this case that by the former trial he was once put in jeopardy, and therefore that he cannot be tried again, and is entitled to his discharge. He filed a plea in abatement, which, if the proper method by which to avail himself of former acquittal or former jeopardy, was properly overruled, as also was his motion in arrest of judgment. Whether there has been former jeopardy must be determined by the evidence, except, perhaps, in certain excepted cases, and this is not one of them. But defendant has presented the question by prayers for instructions which the court refused to give. An examination of the former appeal with the record in this case satisfies us that there was no former jeopardy, and no former acquittal, because we are of the opinion that the offenses charged in the two bills of indictment are not the same. It was held in State v. Nash, 86 N. C. 650, 41 Am. Rep. 472, that, in order to support a plea of former acquittal or former jeopardy, it is not sufficient that the two prosecutions should have grown out of the same transaction, but the plea will not be sustained unless there is an exact and complete identity in the two offenses charged in the bills, as they must be for the same crime, both in law and in fact. Justice Ruffin said, in Nash's Case, that the true test is: Could the defendant have been convicted under the first indictment upon proof of the facts, not as brought forward in evidence, but as alleged in the record of the second, citing Rex v. Vandercomb, 1 Bennett & Heard's Leading Cr. Cases, p. 522; in other words, that there must be identity of the two offenses. If, upon the facts, they are legally the same, there has been former jeopardy, and the verdict in the former prosecution will protect the defendant against a second one. Clark's Cr. Procedure (1st Ed.) p. 396, declares it to be "the general rule that, if the crimes are so distinct, either in fact or in law that evidence of the facts charged in the second indictment would not have supported a conviction under the first, the offenses are not the same, and the second indictment is not barred." And he then gives numerous examples of variances between prosecutions and other illustrationsof this rule of pleading and evidence, and in the note to the foregoing statement of the principle he cites many cases supporting it. In the former appeal, referring to the variance and the motion to nonsuit, we said 169 N.C. at page 330, 85 S. E. 9):

"A variance cannot be taken advantage of by motion in arrest of judgment. State v. Foushee, 117 N. C. 766 [23 S. E. 247]; State v. Ash-ford, 120 N. C. 588 [26 S. E. 915]; State v. Jarvis, 129 N. C. 698 [40 S. E. 220]. It is waived if there is no objection to it before the verdict is rendered, as those cases show. But a motion to nonsuit is a proper method of raising the question as to a variance. It is based on the assertion, not that there is no proof of a crime having been committed, hut that there is none which tends to prove...