State v. Morrison

• Decision Date: 31 October 1881
• Citation: State v. Morrison, 85 N.C. 561 (N.C. 1881)
• Court: North Carolina Supreme Court
• Parties: STATE v. ALEXANDER MORRISON.

85 N.C. 561

STATE

v.ALEXANDER MORRISON.

Supreme Court of North Carolina.

October Term, 1881.

INDICTMENT for larceny tried at Fall Term, 1881, of CABARRUS Superior Court, before Avery, J.

The indictment contains two counts--one for the larceny of some wheat, and the other for receiving the same wheat, knowing it to be stolen. After the evidence was in, the defendant's counsel moved the court to require the solicitor to elect upon which count he would proceed, but his Honor refused the motion, and the defendant excepted, and this was the only exception taken for defendant. After verdict and judgment against defendant he appealed to this court.

Attorney General, for the State .

No counsel for defendant.

RUFFIN, J.

The common law rule is, that if an indictment contains charges distinct in themselves and growing out of separate transactions, the prosecutor may be made to elect, or the court may quash. But when it appears that the several counts relate to one transaction, varied simply to meet the probable proofs, the court will neither quash nor enforce an election. State v. Eason, 70 N. C., 88.

In this case, it is the same wheat which is alleged to have been stolen, and to have been received, so that there can be no doubt that the two counts relate to the same transaction, and that the charge is diversified only out of an abundance of caution, and in order to be prepared for the result of the proofs.

At common law, a joinder of a count for a misdemeanor (which receiving is) with one for a felony, was not permitted, because the defendant's rights, in regard to challenging jurors, differed as to the two offences--though there are some old cases, both in England and this state, in which it was done previous to any statute.

But to remove all doubt about it, statutes were passed as well there as here, allowing such a joinder to be made, notwithstanding the discrepancy as to the grade of the two offences. Their statute (24 and 25 Vict., c. 96,) is fuller than ours, and in terms provides that in case of such a joinder of the two counts, “the prosecutor shall not be put to an election.” Ours contains no such provision, but ever since the day of its adoption has been construed to mean the same thing.

In the case of the State v. Baker, 70 N. C., 530, it is said that under an indictment containing two counts, one for larceny and the other for receiving stolen goods, the jury may bring in a general verdict of guilty, and in discussing the...