State v. Stephens

• Decision Date: 08 December 1915
• Docket Number: 505.
• Citation: 87 S.E. 131,170 N.C. 745
• Parties: STATE v. STEPHENS.
• Court: North Carolina Supreme Court

87 S.E. 131

170 N.C. 745

STATE v. STEPHENS.

No. 505.

Supreme Court of North Carolina

December 8, 1915

Appeal from Superior Court, Catawba County; Harding, Judge.

L. E Stephens was convicted of crime, and he appeals. No error.

Walter C. Feimster, of Newton, Avery & Ervin, of Morganton, and Councill & Yount, of Hickory, for appellant.

T. H Calvert, Atty. Gen., the Assistant Attorney General, and W A. Self, of Hickory, for the State.

CLARK C.J.

The defendant was tried under two bills treated as counts in the same indictment. In the first bill he was indicted jointly with one Leary Lowman, said Lowman being charged with burning the dwelling house of M. J. Stephens, the wife of L. E. Stephens, and L. E. Stephens being charged with procuring and commanding the said Leary Lowman to commit said felony. The second indictment charged the defendant Stephens with attempting to burn the same dwelling house.

On the first bill when Leary Lowman was arraigned for arson the defendant L. E. Stephens who was charged in that bill as accessory before the fact moved and obtained a severance. Leary Lowman tendered the state submission to a verdict of guilty of an attempt to burn under Rev. § 3336, which was accepted. When the defendant was put upon trial on the two bills treated as separate counts he excepted to consolidation of the two bills.

The order of consolidation rested in the discretion of the court. State v. Toole, 106 N.C. 736, 11 S.E. 168; State v. McNeill, 93 N.C. 552; State v. Reel, 80 N.C. 442.

Two indictments for the same offense may be treated as separate counts of the same bill. State v. Railroad, 152 N.C. 785, 67 S.E. 42, 26 L. R. A. (N. S.) 710, 21 Ann. Cas. 692; State v. Railroad, 125 N.C. 666, 34 S.E. 527; State v. Perry, 122 N.C. 1018, 29 S.E. 384; State v. Lee, 114 N.C. 844, 19 S.E. 375.

The defendant was here charged as accessory before the fact in procuring Lowman to burn the house of M. J. Stephens, and in the second count with an attempt to burn the same house. An indictment may charge several offenses arising out of the same transaction. State v. Burnett, 142 N.C. 577, 55 S.E. 72; State v. Howard, 129 N.C. 584, 40 S.E. 71.

At common law an attempt to commit a felony was a misdemeanor. State v. Jordan, 75 N.C. 27; State v. Boyden, 35 N.C. 505. But now under Rev. § 3336, an attempt to commit arson is made a felony.

An election is not required where there is more than one count relating to the same transaction until the close of the evidence. In State v. Parish, 104 N.C. 687, 10 S.E. 460, the court said:

"It rests in the sound discretion of the trial judge to determine whether he will compel an election at all, and if so, at what stage of the trial."

To same effect, 1 Bishop, New Cr. Proc. (2d Ed.) § 454 et seq. In State v. Burnett, 142 N.C. 577, 55 S.E. 72, it was held that though an indictment charging two separate and distinct offenses in the same count was bad for duplicity the error was cured by a nol. pros. as to all but one charge, or by a verdict.

The court instructed the jury that they could not convict the defendant on the first count as accessory before the fact to arson. This was doubtless because he thought there was no evidence to support the charge, for under Rev.§§ 3287 and 3288, an accessory before the fact may be put on trial irrespective whether the principal shall have been put on trial or not.

The defendant was convicted on the second count for an attempt to commit arson. He moves in this court in arrest of judgment upon the ground that the bill does not charge an overt act. This motion can be made for the first time in this court like the similar motion that a complaint does not state a cause of action or that the court does not have jurisdiction. Rule 27, 164 N.C. 548, 81 S.E. xi; State v. Caldwell, 112 N.C. 855, 16 S.E. 1010; and cases cited thereto in the Anno. Ed.

There is no more reason why the methods or means resorted to in an attempt to commit arson, or any other crime, should be specifically averred any more than in charging the offense of arson or murder or any other crime. "An attempt to commit arson" or an "attempt to commit murder" conveys the same information to the defendant as if the charge was of murder or of arson, and further information could be sought by a bill of particulars in accord with our reformed procedure. We no longer charge whether a murder was committed with a knife or a pistol nor the length and breadth and depth of a wound, and the same is true as to all other offenses. In lieu of this, we have adopted Rev. § 3244, which provides:

"In all indictments when further information not required to be set out therein is desirable for the better defense of the accused, the court, upon motion, may, in its discretion, require the solicitor to furnish a bill of particulars of such matters."

This statute has been repeatedly cited and applied to various offenses. See citations under that section in Pell's Revisal. Rev. § 3254 provides that no warrant or indictment "shall * * * be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment." The charge of an attempt to burn the house of his wife and a conviction thereof...