State v. Overman, 662

• Decision Date: 01 March 1967
• Docket Number: No. 662,662
• Citation: 269 N.C. 453,153 S.E.2d 44
• Parties: STATE, v. Gary David OVERMAN, Harvey Clayton Overman, John Marvin Overman.
• Court: North Carolina Supreme Court

Page 44

153 S.E.2d 44

269 N.C. 453

STATE, v. Gary David OVERMAN, Harvey Clayton Overman, John Marvin Overman.

No. 662.

Supreme Court of North Carolina.

March 1, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

E. L. Alston, Jr., Greensboro, for Harvey Clayton Overman.

Percy L. Wall, Greensboro, for John Marvin Overman.

Clyde T. Rollins, Greensboro, for Gary David Overman.

LAKE, Justice.

There is no merit in the exception by Gary Overman to the denial of his plea in abatement, the ground of which plea was that the offense, if it occurred, occurred in Randolph County and, therefore, Randolph County was the proper venue.

The record shows only: 'This plea in abatement was filed, heard and ruled on prior to the making of any general appearance by Gary David Overman. The plea was denied. Defendant excepts.' Since the plea relates also to the indictment charging kidnapping, it appears that it was heard and denied prior to the trial of that charge. The record being silent as to the nature of the hearing upon this plea and as to what evidence was offered and received, the presumption is that the procedure in the court below was regular and free from error. State v. Mullis, 233 N.C. 542, 64 S.E.2d 656.

The evidence of the State at the trial of this action shows clearly, and without contradiction, that the place at which the girl was forced from the car of her original companion into the car of the Overmans, which latter car was driven by Gary Overman, was on a dirt road well within the boundaries of Guilford County. It clearly indicates that the first rape of the girl began immediately after she was put into the Overman car and that the subsequent rapes occurred in somewhat rapid succession. It was 'a long time' after the car had been pulled out of the ditch that the girl observed a recognizable point in Randolph County. It is further noted that this plea in abatement was filed by Gary Overman, whose defense at the trial was that he was not present when these events occurred. John Overman and Harvey Overman did not contest the venue.

G.S. § 15--134 provides that in the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county alleged in the indictment unless the defendant denies the same by plea in abatement. This statute does not state which party has the burden of proof if such plea if filed. At common law, the burden of proof was upon the State to prove that the offense occurred in the county named in the bill of indictment. State v. Oliver, 186 N.C. 329, 119 S.E. 370. With reference to this statute, Ashe, J., speaking for the Court in State v. Mitchell, 83 N.C. 674, said:

'The mischief intended to be remedied by it was the difficulty encountered by the Court in effecting the conviction of persons who had violated the criminal law of the State where the offense was committed near the boundaries of counties which were undetermined or un-known. And it often happened that, where the boundaries were established and known, it was uncertain from the proof whether the offense was committed on the one or the other side of the line, and, in consequence of the uncertainty and the Doubt arising from it, offenders went 'unwhipped of justice.' This was the evil intended to be remedied.'

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The statute should be construed to accomplish this purpose. We, therefore, hold that there is no error in overruling Gary Overman's plea in abatement, there being nothing in this record to show that he offered any evidence which would support a finding that the offense with which he is charged occurred in a county other than Guilford, as charged in the indictment.

Each of the defendants assigns as error the denial by the court of his plea of former jeopardy and the refusal of the court to submit to the jury an issue with reference to such plea. There is no merit in these assignments of error.

The theory of the pleas of former jeopardy is: Each defendant was previously tried under the indictment charging him with kidnapping this girl on the same evening on which the alleged rapes occurred; upon that trial John and Harvey Overman were convicted of an assault upon a female, and Gary Overman was convicted of a simple assault, he being less than 18 years of age; assault upon a female and simple assault are offenses included within the offense of rape; consequently, the defendants have each been already put in jeopardy for an offense included in the offense with which they are now charged.

It is elementary that a continuous series of acts by a defendant, all occurring on the same date and as parts of one entire plan of action, may constitute two or more separate criminal offenses. See State v. Bruce, 268 N.C. 174, 184, 150 S.E.2d 216. The fact that a defendant has been previously put in jeopardy upon an indictment charging one such offense does not, necessarily, bar a subsequent prosecution upon an indictment charging a different offense committed in the course of the same series of acts and pursuant to the same plan of action. State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424.

When one is placed in jeopardy under a valid indictment, he is then in jeopardy with reference to every offense of which he might lawfully be convicted under that indictment, and no other. He may not thereafter be put in jeopardy for any offense of which he could lawfully have been convicted under that indictment. State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838, 6 A.L.R.3rd 888.

A defendant indicted for a criminal offense may be convicted under that indictment, of the offense charged therein or of any lesser offense, all of the essential elements of which are included within the offense so charged in the indictment and all of which elements could be proved by proof of the facts alleged in the indictment. He may not, upon his trial under that indictment, be lawfully convicted of any other criminal offense, whatever the evidence introduced against him may be. State v. Rorie, 252 N.C. 579, 114 S.E.2d 233; 27 Am. Jur. Indictment and Information, § 194; Wharton, Criminal Law and Procedure, § 1799.

The test of former jeopardy is not whether the two offenses were committed in the same series of acts, pursuant to the same plan of action. The test is whether the defendant could have been lawfully convicted, under the former charge, of any offense of which he might, but for the former proceeding, be now convicted under the present indictment. State v. Birckhead, supra; State v. Barefoot, supra; State v. Leonard, 236 N.C. 126, 72 S.E.2d 1, cert. den., 344 U.S. 916, 73 S.Ct. 339, 97 L.Ed. 706; State v. Williams, 229 N.C. 415, 50 S.E.2d 4; State v. Midgett, 214 N.C. 107, 198 S.E. 613.

If each of two criminal offenses, as a matter of law, requires proof of some fact, proof of which fact is not required for conviction of the other offense, the two offenses are not the same and a former jeopardy with reference to the one does not bar a subsequent prosecution for and conviction for the other. State v. Birckhead, supra; State v. Stevens, 114 N.C. 873, 19 S.E. 861. Where, as in

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State v. Bell, 205 N.C. 225, 171 S.E. 50, the prosecution, under the second indictment, proceeds upon the theory that the offense charged therein was committed by means of another offense for which the defendant has previously been put in jeopardy, as where an indictment for murder charges that the murder was committed in the commission of another felony, for which the defendant has been previously tried and acquitted, the State has made the first alleged offense an element of the second and the defense of former jeopardy bars the subsequent prosecution. This result does not follow where the offense charged upon the former proceeding is neither an element of nor the means by which the offense subsequently charged was committed. Obviously, a former conviction or acquittal of an offense does not bar a subsequent prosecution under an indictment charging a totally different offense of the same kind, even though the two are separated by a narrow interval of time or place.

The offense of kidnapping and the offense of rape are obviously not the same, each having essential elements which are not component parts of the other. Though rape may be the motive for a kidnapping, the kidnapping is not the means by which the crime of rape is committed so as to bring such a case within the rule of State v. Bell, supra. See State v. Bruce, supra, 268 N.C. at page 184, 150 S.E.2d 216.

The argument that assault and assault on a female are essential elements of rape and since these defendants were convicted of assault and assault on a female, respectively, when tried under the indictment for kidnapping, they have been formerly in jeopardy with reference to the offenses now charged in the indictments for rape, is ingenious but without merit. In the first place, notwithstanding State v. Marks, 178 N.C. 730, 101 S.E. 24, a simple assault is probably not, and an assult on a female is certainly not, an essential element of the crime of kidnapping, since the victim of a kidnapping need not be a female and may be enticed away by fraud rather than forced by violence or threat to accompany the abductor. See State v. Gough, 257 N.C. 348, 126 S.E.2d 118, 95 A.L.R.2d 441. The defendants did not appeal from their convictions of assault at the trial for kidnapping. Secondly, the transcript of the trial of the kidnapping case, which is part of the record in this action, though not submitted to the jury herein, shows that the jury was explicitly instructed at that trial that it might not convict the defendants in that action of an assault except as an incident to the alleged kidnapping. The jury at the kidnapping trial was instructed that the evidence there admitted as to what occurred after this girl entered the Overman car was to be considered by them only for the purpose of determining whether her going with the defendants to...