State v. Hankins
| Decision Date | 11 October 1904 |
| Parties | STATE v. HANKINS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Ferguson, Judge.
Joseph Hankins was convicted of larceny, and appeals. Affirmed.
On a prosecution for larceny, it appeared that defendant had been previously indicted jointly with another for stealing a hat cap, pants, collar buttons, and suspenders, and that the state, being unable to prove that the present defendant took any of the articles described, proposed to prove by the prosecutor that he saw defendant take a coat at the same time, but in a different part of the store, in order to show a conspiracy to steal the articles mentioned in the bill. On its appearing afterwards that the defendant had not taken any of the articles alleged in the first trial to have been stolen, and that no evidence of a conspiracy existed, the court directed a verdict of not guilty as to the present defendant, who was thereupon indicted for stealing the coat. On the trial for such theft there was proof that the coat was the same coat which the prosecutor identified in the first case, and that it was taken at the same time and from the same person. Held insufficient to sustain a plea of former acquittal.
The defendant and one Sam Bell were indicted for stealing a hat cap, pants, collar buttons, and suspenders from R. F. Hamme and the state, being unable to show that the defendant Hankins, took any of the articles described in the bill, proposed to prove by the prosecutor that he saw him take a coat at the same time, but in a different part of the store, Bell being at the showcase and the defendant at the clothing table; the avowed object of the solicitor being to show a conspiracy to steal the articles mentioned in the bill, and thereby to convict the defendant. The court admitted the testimony, but upon its appearing afterwards that defendant had not taken any of the articles alleged in the first trial to have been stolen, and that the parties had not talked or made any signs to each other, and there being no other evidence of a conspiracy, the court charged the jury that there was no evidence of a conspiracy, and directed a verdict of not guilty as to Hankins, which was entered. The defendant was thereupon indicted for stealing the coat, and pleaded former acquittal and not guilty; and the first plea was tried upon the evidence already stated and the further evidence that the coat was the same coat which the prosecutor identified in the first case, and was taken at the same time the other articles were taken and from the same person. The court instructed the jury that if they believed the evidence they should return a verdict against the plea, as it had not been sustained. There was a verdict against the defendant upon his plea of not guilty. There was no exception as to this plea. Judgment and appeal.
Bellamy & Bellamy and Herbert McClammy, for appellant.
The Attorney General, for the State.
WALKER J. (after stating the case).
The fact that the defendant took the coat was not used as evidence against him on the trial of the first indictment because, while the judge at first admitted it as evidence, he subsequently withdrew it from the consideration of the jury by charging them that there was no evidence of a conspiracy, and consequently none of defendant's guilt. The verdict in that case determines that there was no joint action between defendant and Bell, and no intent common to both of them, and it further determines that defendant did not steal any of the goods mentioned in the first indictment. The object of the state was not to show that the defendant took the articles described in that indictment and the coat at one and the same time, but to prove that there was a conspiracy between Bell and Hankins, because they took different goods in the same store, at the same time, which belonged to the same person. The case does not, therefore, fall within the principle of State v. Weaver, 104 N.C. 758, 10 S.E. 486, which was cited by defendant's counsel. 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 that the defendant might have been convicted upon it by proof of the facts contained in the second, an acquittal on the first can be no bar to the second. Rex v. Vandercomb, 2 Leach, 716; State v. Birmingham, 44 N.C. 120; State v. Nash, 86 N.C. 650, 41 Am. Rep. 472; 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...
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