State v. Johnson

• Decision Date: 18 September 1974
• Docket Number: No. 7420SC621,7420SC621
• Citation: 208 S.E.2d 206,23 N.C.App. 52
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jesse JOHNSON and James Henry Collins.

Page 206

208 S.E.2d 206

23 N.C.App. 52

STATE of North Carolina v. Jesse JOHNSON and James Henry Collins.

No. 7420SC621.

Court of Appeals of North Carolina.

Sept. 18, 1974.

Review Denied by Supreme Court Dec. 3, 1974.

Atty. Gen. Robert Morgan by Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State.

Leath, Bynum & Kitchin, by Henry L. Kitchin, Rockingham, for defendant appellants.

VAUGHN, Judge.

Defendant's first contention on appeal is that the trial court erred in trying defendants for this court of armed robbery when defendants had been previously found guilty of another armed robbery which occurred at the same time and place.

It is well-settled that the 'same act may constitute two or more offenses which are distinct from each other' and that in such cases 'the accused may be separately prosecuted and punished for each.' 1 Wharton's Criminal Law, § 394, pp. 537--8. See State v. Nash, 86 N.C. 650; State v. Gibson, 170 N.C. 697, 86 S.E. 774.

The defendants were charged on three counts of robbery, all of which occurred at the same time and place. In a trial on 12 November 1973, defendants were found guilty of armed robbery of James Frye. Now the defendants are being tried for the armed robbery of Jimmy Dunn. The second indictment under which defendants are now being tried is identical to the first except for the victim and the property taken.

The discussion of this contention of double jeopardy presents two questions: (1) whether the 'same evidence' rule can be applied to show double jeopardy and (2) whether the acts of armed robbery do constitute the 'same offense.'

The same evidence test is defined in State v. Hicks, 233 N.C. 511, 516, 64 S.E.2d 871, 875, as follows: 'Whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment (citations), or whether the same evidence would support a conviction in each case (citations).'

When applying this test to the case at bar, we find that the same evidence would not support a conviction in each case. Evidence of a robbery of property from the first victim will not support a conviction of a robbery of different property from a different victim. This is analogous to the situation in Hicks, wherein Justice Ervin wrote that evidence of conspiracy to damage or injure property owned or used by the Duke Power Company would not support a conviction of a conspiracy to damage or injure property owned or used by Jefferson Standard Broadcasting Company. State v. Hicks, Supra, at 517, 64 S.E.2d at 875.

In State v. Ballard, 280 N.C. 479, 186 S.E.2d 372, the Supreme Court applied the same evidence test and determined that defendants had been twice put in jeopardy. That case is distinguishable from the case at bar.

In Ballard, the rationale was that '. . . when the lives of all employees in a store are threatened and endangered by the use or threatened use of a firearm incident to the theft of their employer's money or property, a single robbery with firearms is committed.' State v. Potter, 285 N.C. 238, 253, 204 S.E.2d 649, 659. In the case at bar, the persons threatened were not employees of one employer victimized by the taking of the employer's property. Each person threatened was a victim, each being robbed of his personal property.

As to the 'same offense' doctrine in Potter, supra, the majority held that verdicts of guilty in an armed robbery of two cash registers manned by separate employees of a food market were to be considered as a single verdict of guilty of armed robbery. In so finding the Court limited its holding to a situation in which there is 'the use or threatened use of a firearm incident to the theft of their employer's money or property.' State v. Potter, Supra, at 253, 204 S.E.2d, at 659. The Court expressed no opinion as to a factual situation in which the robber takes money or property of an employee or customer.

Here defendants threatened the use of force on separate victims and took property from each of them. They were not employees. It was not the employer who was robbed. Rather each separate victim was deprived of property. The armed robbery of each person is a separate and distinct offense, for which defendants may be prosecuted and punished.

Next, we consider the defendant's allegation that it was error for the Court to permit leading questions in the Voir dire examination of witnesses Frye and Dunn as to their identification testimony. 'The trial court has discretionary authority to permit leading questions in proper instances (citation).' State v. Bass, 280 N.C. 435, 448, 186 S.E.2d 384, 393. Further, 'the rulings of the judge on the use of leading questions are discretionary,' and such rulings are 'reversible only for abuse of discretion.' 1 Stansbury, N.C. Evidence (Brandis Revision) § 31. Also see State v. Bass, Supra, 280 N.C. at 448, 186 S.E.2d, at 393.

In Bass, the North Carolina Supreme Court held that the trial judge's decision to permit leading questions asked by the solicitor in examining a rape victim on Voir dire as to identification testimony was permissible and showed no abuse of discretion.

The third...