State v. Hooker

• Decision Date: 11 December 1907
• Citation: 59 S.E. 866,145 N.C. 581
• Parties: STATE. v. HOOKER.
• Court: North Carolina Supreme Court

59 S.E. 866

145 N.C. 581

STATE.

v.HOOKER.

Supreme Court of North Carolina.

Dec. 11, 1907.

1. Criminal Law—Appeal—Harmless Error —Evidence—Surplusage.

Under Revisal 1905, § 3333, making it an indictable offense to break and enter "a storehouse * * * where any merchandise * * * shall be, " the allegations of an indictment in a prosecution under such statute containing, in addition, the words "with intent to commit larceny, " is surplusage, and evidence offered of intent to steal is irrelevant and harmless.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3137-3143.]

2. Same—Former Jeopardy—Identity of Offenses.

The acquittal of an accused on the charge of larceny of certain articles is not an estoppel of the state to prove, in a prosecution for breaking and entering with intent to steal the same articles, that accused took such articles.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 386-409.]

3. Same.

An aquittal on prosecution for larceny will not bar a subsequent prosecution for breaking and entering with intent to commit larceny.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 386, 387.]

4. Same — Argument of Counsel — Failure of Accused to Testify—Action of Court.

In a criminal prosecution, the comment of counsel that "none of the evidence testified to by the state witnesses had been contradicted, and no one has said that it was not true, " is not a comment on failure of accused to testify, especially where the jury were instructed to disregard such comment as bearing on his failure.

[Ed. Note.—For cases in point, see Cent. Dig. voi. 14, Criminal Law, §§ 1672, 1693.]

Appeal from Superior Court, Moore County; Webb, Judge.

Ira Hooker was convicted of breaking and entering a store with intent to steal, and appeals. Affirmed.

R. L. Burns, for appellant.

Assistant Attorney General Clement, for the State.

CLARK, C. J. The defendant was acquitted of a charge of stealing certain articles. He was later tried and convicted under Revisal 1905, § 3333, of breaking and entering a store where those articles were kept with intent to steal the same. The defendant's first three exceptions are to evidence as to those articles being in the store, and to any evidence tending to show that the defendant took them; this being offered, not to show the larceny, but to show that the breaking and entering the storehouse, which was proven, was with intent to commit larceny.

Revisal 1905, § 3333, makes it indictable to "break and enter a storehouse, shop, &c, where any merchandise, chattel, etc., or other personal property shall be." The addition in the indictment of the words "with intent to commit larceny" was surplusage; hence unnecessary to be proven, and any proof offered of intent to steal was merely irrelevant and harmless. But, If it were otherwise, the exceptions could not be sustained. The charge of larceny of the articles of which the defendant had been acquitted, and that of "breaking and entering with intent to steal, " are distinct offenses; but it was competent, in order to show the intent to steal, to prove that the defendant took the articles. Ruffin, C. J., in State v. Jesse, 20 N. 0. 108, citing Hale, P. C, 560; Arch. Cr. Pl. 260. The previous conviction protects him from being tried again for the same offense, but it is not an estoppel on the state to show the same facts, if, in connection with other facts, they are part of the proof of another and distinct offense. This has been often held. State v. Jesse, 20 N. C. 98; State v. Birmingham, 44 N. C. 120; State v. Revels, 44 N. C. 200; State v. Nash, 86 N. C. 650, 41 Am. Rep. 472. The evidence in the trial for larceny would not have sup ported a verdict on this charge of breaking and entering; and, though some of the facts in that case must be used in this case, they are different offenses. In State v. Nash, supra, Ruffin, J., says: "To support the plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction, but they must be for the same offense—the same both in fact and in law." In State v. Lytle, 138 N. C. 740, 51 S. E. 66, the court showed that it was possible that selling the same glass of liquor in an un-usual combination of circumstances might be put in evidence as one of the essential facts in proving five separate and distinct offenses. (1) It might be put in proof on a trial for a violation of the federal statute in selling without United States license. (2) It might also be proven in a trial for a sale without payment of the state tax and state license. (3) And for selling without payment of town tax and license. (4) For selling on Sunday. (5) For selling to a minor. The court there says: "Though there is a single act, it may thus be a violation of five statutes, and when in such case, as Burwell, J., says in State v. Stevens, 114 N. C. 877, 19 S. E. 862, 'each statute requires proof of an additional fact, which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution under the other.' " The fact of the sale of the glass of liquor must be proven in each of these cases. While failure to prove that the sale was on Sunday would acquit on one indictment, or that the sale was to a minor would acquit on another, none the less the defendant could be convicted on the other indictments if the sale was made without a United States license, or without paying state tax and getting a county license, or...