State v. Midgett
| Decision Date | 21 September 1938 |
| Docket Number | 3. |
| Parties | STATE v. MIDGETT. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Dare County; W. H. S. Burgwyn, Special Judge.
Jethro Midgett, Jr., was convicted of felonious slaying and he appeals.
No error.
Acquittal in recorder's court of charges of drunken and reckless driving was not bar, on ground of former acquittal or former jeopardy, to further prosecution in superior court for manslaughter, notwithstanding all the charges were based on same act of defendant, since offenses are not same, one is not a lesser degree of other, and additional facts must be alleged and proved to establish the one which need not appear on trial of the other. Pub.Laws 1937, c. 407, §§ 101, 102.
When same facts constitute two or more offenses, wherein lesser offense is not necessarily involved in greater, and when facts necessary to convict on second prosecution would not necessarily have convicted on first, then first prosecution will not be bar to second, although offenses were both committed at same time and by same act.
Criminal prosecution tried upon indictment charging the defendant in three counts, first, with the felonious slaying of one Ethel D. Hartley, second, with the felonious slaying of one Winston Green, and, third, with the felonious violation of the "hit and run" statute (Pub.Laws 1937, c. 407, § 128) at the time of the accident or injury which resulted in the double homicide of the said Hartley and Green.
The evidence on behalf of the State tends to show that on September 2, 1937, at about 8 P. M. the defendant, while driving his automobile on the highway near Manteo on Roanoke Island, ran into and killed two pedestrians, Ethel D. Hartley and Winston Green; that the defendant was driving on his left-hand side of the road at the time, without lights, at a rate of 40 or 45 miles an hour, and that it was dark. The evidence is conflicting as to how the accident occurred.
On the following day two warrants were issued and served upon the defendant, one charging him with manslaughter, and the other (1) with operating a motor vehicle on the public highway while under the influence of intoxicating liquors, morphine opiates or other drugs (Pub.Laws 1937, c. 407, § 101), and (2) with operating a motor vehicle on the public highway in a reckless, careless and wanton manner without regard to the rights and safety of others, against the form of the statute in such cases made and provided (Pub.Laws 1937, c. 407, § 102) and against the peace and dignity of the State.
Thereafter on the 7th day of September, 1937, in the Recorder's Court of Dare County, the defendant was acquitted on the warrant charging him with drunken and reckless driving, and bound over to the Superior Court for action on the warrant charging him with manslaughter.
A true bill was returned at the October Term, 1937, to which said bill the defendant duly entered pleas of former acquittal or former jeopardy on the first and second counts and "not guilty" as to the entire bill.
The court held that the defendant's plea of former acquittal or former jeopardy was not good and instructed the jury accordingly. Exception.
Verdict Guilty on the first and second counts in the bill, and not guilty on the third.
Judgment: Imprisonment for not less than one nor more than three years and assigned to work upon the roads.
Defendant appeals, assigning errors.
Worth & Horner and McMullan & McMullan, all of Elizabeth City, for appellant.
Harry M. McMullan, Atty. Gen., and R. H. Wettach and L. O. Gregory, Asst. Attys. Gen., for the State.
The question for decision, as debated on argument and in brief, is whether an acquittal of the defendant on a charge of reckless driving will bar a further prosecution for manslaughter when the two charges stem from the same occurrence. The pertinent authorities answer in the negative. Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 114 A.L.R. 1401; State v. Yuse, 191 Wash. 1, 70 P.2d 797; People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; State v. Empey, 65 Utah 609, 239 P. 25, 44 A.L.R. 558; Henson v. Commonwealth, 165 Va. 829, 183 S.E. 438; Commonwealth v. Jones, 288 Mass. 150, 192 N.E. 522; Commonwealth v. McCan, 277 Mass. 199, 178 N.E. 633, 78 A.L.R. 1208; 42 C.J. Sec. 1385.
In the first place, the two offences are not the same, either in law or in fact. State v. Gibson, 170 N.C. 697, 86 S.E. 774; State v. Hankins, 136 N.C. 621, 48 S.E. 593; State v. Yancy, 4 N.C. 133, 6 Am.Dec. 553; State v. Williams, 1 N.C. 591; 8 R.C.L. 149. Nor is the one a lesser degree of the other. C.S. § 4640; State v. Albertson, 113 N.C. 633, 18 S.E. 321; State v. Lewis, 9 N.C. 98, 11 Am.Dec. 741; State v. Ingles, 3 N.C. 4. They differ both in grade and kind. State v. Taylor, 133 N.C. 755, 46 S.E. 5. The one is a misdemeanor, made so by statute; the other a felony. State v. Moore, 136 N.C. 581, 48 S.E. 573. Additional facts must be alleged and proved to establish the greater which need not appear on the trial of the lesser offense. State v. Pierce, 208 N.C. 47, 179 S.E. 8; State v. Hooker, 145 N.C. 581, 59 S.E. 866; State v. Robinson, 116 N.C. 1046, 21 S.E. 701; State v. Stevens, 114 N.C. 873, 19 S.E. 861.
We have a number of decisions to the effect that when the same act constitutes a violation of two statutes, a prosecution for the violation of the one need not bar a subsequent prosecution for the violation of the other. State v. Malpass, 189 N.C. 349, 127 S.E. 248; State v. Hooker, supra; State v. Lytle, 138 N.C. 738, 51 S.E. 66; State v. Birmingham, 44 N.C. 120.
"The test 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." Morey v. Commonwealth, 108 Mass. 433; Gavieres v. U. S., 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489; State v. Dills, 210 N.C. 178, 185 S.E. 677; State v. Freeman, 162 N.C. 594, 77 S.E. 780; State v. Jesse, 20 N.C. 95; State v. Dewees, 76 S.C. 72, 56 S.E. 674, 11 Ann.Cas. 991, and note.
The authorities are in disagreement as to what constitutes the "same offense"; also as to when more than one punishment may be applied to the same transaction. 8 R.C.L. 145 et seq. Some courts have gone to the extent of holding that there can be but one punishment for one criminal transaction, while others have held that one act may constitute any number of crimes, for each of which the actor may be prosecuted, and a conviction of one will not bar a prosecution for another. State v. Ross, 4 Lea 442, 72 Tenn. 442; 8 R.C.L. 148.
An interesting and helpful summary of the "general rules deductible from principle and authority", as applied to pleas of autrefois, acquit and convict, was made by the writer of the opinion, Mr. Justice Cook, in Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794. His conclusions follow:
"1. Where two or more offenses of the same nature are by statute carved out of the same transaction and are properly the subject of a single investigation, an acquittal or conviction...
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