State v. Lippard

• Decision Date: 19 May 1943
• Docket Number: 506.
• Citation: 25 S.E.2d 594,223 N.C. 167
• Parties: STATE v. LIPPARD et al.
• Court: North Carolina Supreme Court

25 S.E.2d 594

223 N.C. 167

STATE v. LIPPARD et al.

No. 506.

Supreme Court of North Carolina

May 19, 1943

The defendants were tried and convicted upon a bill of indictment which charged that they, together with others, did "unlawfully and wilfully conspire, confederate and agree together to buy, possess, possess for the purpose of sale transport and sell intoxicating liquor, and in furtherance of such conspiracy, confederation and agreement, did unlawfully and wilfully buy, possess, possess for the purpose of sale transport and sell intoxicating liquor. ***"

From judgment of imprisonment predicated upon a verdict of guilty the defendants appealed, assigning errors.

G.T Carswell, of Charlotte, for appellants.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

SCHENCK, Justice.

Although the bill of indictment charges both a conspiracy to violate the laws relating to intoxicating liquors and the actual violation of such laws in furtherance of such conspiracy, the charge of the consummation of the unlawful purpose was not submitted to the jury, the court having limited the consideration of the jury to the offense of conspiracy, instructing the jury: "The only question before you gentlemen is a pure question of fact, that fact being: Are you satisfied beyond a reasonable doubt from this testimony in this case that these men, or any two of them, during the years 1941 and 1942, up to March 22nd, conspired together to violate the prohibition law? If you are so satisfied, it will become your duty to convict those two of them about whom you are so satisfied, or any other about whom you are so satisfied, in addition to any two of them, if you are so satisfied that more than two of them did so conspire. If you are not satisfied about any two of them or more than two of them, it will become your duty to acquit them all."

The defendants bring forward by proper exceptive assignments of error the Court's refusal to allow their motion for dismissal based upon a plea of former convictions and double jeopardy.

The warrants in the cases upon which the defendants rely as former convictions charged separately that each defendant "did wilfully, maliciously, unlawfully and feloniously manufacture, buy, possess, possess for the purpose of sale, retail and transport intoxicating liquors. ***" There was no charge of joint action or agreement and the proof of such action or agreement was in no wise necessary for conviction thereunder.

Joint action and agreement were essential elements of the only offense submitted for the consideration of the jury upon the bill of indictment upon which the defendants were convicted, namely, unlawful conspiracy.

Since the essential elements of the offenses charged in the bill of indictment in this case and in the warrants to which they had formerly pleaded guilty were not the same, the offenses were different in law and in fact. Therefore, the Court properly held as a matter of law that the plea of former jeopardy was not tenable.

The charge of conspiracy to violate the law and the charge of the consummation of the conspiracy by an actual violation of the law are charges of separate offenses. State v. Dale, 218 N.C. 625, 12 S.E.2d 556.

In enumerating certain principles applicable to a plea of double jeopardy, Allen, J., in State v. Freeman, 162 N.C. 594, 77 S.E. 780, 781, 45 L.R.A., N.S., 977, states: "(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." In order to convict in a trial for conspiracy certain facts are required to be proven that are not at all essential to a conviction of the consummated offense. The consummated offense and the conspiracy to commit the offense are by no means the same. "*** a prior prosecution, whether it results in an acquittal or whether such prior prosecution results in a conviction of a particular crime, is ordinarily no bar to a prosecution for a conspiracy to commit the same." 22 C.J.S., Criminal Law,§ 288, p. 432.

The real issue was whether the offenses charged in the warrants to which the defendants pleaded guilty and charged in the bill of indictment upon which they were subsequently convicted were the same, and the record shows they were not. State v. Gibson, 170 N.C. 697, 86 S.E. 774.

"The true test is as stated in Rex v. Vandercomb: Could the defendant have been convicted upon the first indictment upon proof of the facts, not as brought forward in evidence, but, as alleged in the record of the second. *** The only safe rule is to stand by the decisions of our courts, and to hold that the plea of former acquittal cannot avail, unless there should be an exact and complete identity in the two offenses charged." Ruffin, J., in State v. Nash, 86 N.C. 650, 41 Am.Rep. 472.

To support the plea of former conviction or acquittal the two prosecutions must be for the same offense, it is not enough that they grow out of the same transaction. State v. Freeman, supra. A previous acquittal or conviction protects the defendant from being tried again for the same offense, but 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. State v. Hooker, 145 N.C. 581, 59 S.E. 866. "The test (for disposing of a plea of former jeopardy) is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence." Stacy, C.J., in State v. Midgett, 214 N.C. 107, 198 S.E. 613, 614.

In the very recent case of State v. Davis, in 223 N.C. 54, 25 S.E.2d 164, Stacy, C.J., reviews the decisions of this court relative to the plea of former jeopardy and holds that the lower court was correct in ruling that the evidence was not sufficient to sustain the plea when it tended to show that the warrant to which the defendant had pleaded guilty was not as broad as the four-count indictment upon which the defendant was subsequently convicted. We have identically that same situation in the case at bar. The defendants pleaded guilty to warrants which charged the consummated offense of violating the laws relating to intoxicating liquors, and the bill of indictment upon which they have been convicted was broader and charged a conspiracy to violate such laws, as well as the actual violation thereof.

We conclude that there was no error in the ruling of his Honor that the plea of former conviction and double...