State v. Stinson, 722

• Decision Date: 15 January 1965
• Docket Number: No. 722,722
• Citation: 263 N.C. 283,139 S.E.2d 558
• Court: North Carolina Supreme Court
• Parties: STATE, v. Winfred R. STINSON.

Page 558

139 S.E.2d 558

263 N.C. 283

STATE, v. Winfred R. STINSON.

No. 722.

Supreme Court of North Carolina.

Jan. 15, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. Gilliard, Asst. Atty. Gen. Richard T. Sanders, and Andrew A. Vanore, Jr., Staff Atty., for the State.

Paul H. Ridge, Graham, for defendant appellant.

PARKER, Justice.

When at defendant's trial at the May 1964 Criminal Session a judgment of nonsuit was entered by the court on his motion, it had 'the force and effect of a verdict of 'not guilty' as to such defendant' of the charges averred in the indictment on which he was being tried. G.S. § 15-173; State v. Smith, 236 N.C. 748, 73 S.E.2d 901.

If there is anything settled beyond reconsideration in the criminal jurisprudence of England and America, it is that no one shall twice be put in jeopardy for the same offense, both in law and in fact. State v. Hicks, 233 N.C. 511, 64 S.E.2d 871; Ex parte Lange, 18 Wall. (U.S.) 163, 21 L.Ed. 872.

Defendant has the burden of proof on his plea in bar of former acquittal to show that he had been formerly acquitted for the same offense, both in law and in fact. State v. Jesse, 20 N.C. 95; State v. Nash, 86 N.C. 650; State v. White, 146 N.C. 608, 60 S.E. 505; State v. Bell, 205 N.C. 225, 171 S.E. 50; State v. McIntosh. 260 N.C. 749, 133 S.E.2d 652.

Defendant assigns as error that the court denied his plea of former acquittal; that the court erred in finding that 'defendant has never before been tried, acquitted or placed in jeopardy for the offenses wherewith he now stands charged in the present bill of indictment'; and in refusing to submit an issue to the jury of former acquittal as tendered by him.

The case of State v. Law and Kelly, which was before this Court twice on appeal, is apposite. On the first appeal, 227 N.C. 103, 40 S.E.2d 699, defendants were found guilty on an indictment charging them in one count with the larceny of an automobile, the property of the city of Winston-Salem; and, in a second count, with receiving the automobile, the property of the city of Winston-Salem, knowing it to have been feloniously stolen, and appealed from judgments of imprisonment imposed in accord with the verdict. The record disclosed that on the night of 15 April 1946, Oscar Morrison, a police officer of the city of Winston-Salem, discovered an automobile on one of the city streets from which a five-gallon container full of nontax-paid whisky had just been taken and which had evidently been transported therein contrary to law. He took possession of the automobile, drove it to the city lot and parked it for the night. The automobile was stolen from the city lot during the night, and there is evidence, circumstantial and presumptive, tending to connect defendants with its disappearance. The opinion, for a unanimous Court, written by Chief Justice Stacy, states:

'The question for decision is whether there is a fatal variance between the indictment and the proof. Stare decisis would seem to require an affirmative answer.

'Conceding that the automobile in question, even if originally the property of one of the defendants, was the subject of larceny while in the custody of the officer who had seized it under authority of law, still it does not follow that its ownership was properly laid in the City of Winston-Salem. The City had no property right in it, special or otherwise. Only the officer who seized the property was authorized to hold it, take and approve bond for its return 'To the custody of said officer', and to hold it subject to the orders of the court. G.S. § 18-6. A conviction under the present bill would not perforce protect the defendants against another prosecution with the right to the property laid in the seizing officer or in the custody of the law. State v. Bell, 65 N.C. 313. The City of Winston-Salem, no doubt, owns a number of automobiles, such as would fit the description in the bill, but none of these was stolen. 'The object of an indictment is to inform the prisoner with what he is charged, as well to enable him to make his defense as to protect him from another prosecution for the same criminal act.' State v. Carlson, 171 N.C. 818, 89 S.E. 30, 34.

'Usually a fatal variance results, in larceny cases, where title to the property is laid in one person and the proof shows it to be in another. State v. Jenkins, 78 N.C. 478. 'In all cases the charge must be proved as laid'. State v. Bell, supra.

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'The present conviction will be set aside, the demurrer to the evidence sustained, and the solicitor allowed to send another bill, if so advised.'

On the second appeal, 228 N.C. 443, 45 S.E.2d 374 defendants were found guilty on an indictment charging them, in one count, with the larceny of an automobile, the property of one Oscar Morrison; and, in a second count, with receiving the same automobile knowing it to have been feloniously stolen, and appealed from judgments of imprisonment imposed in accord with the verdict. The evidence for the prosecution tends to show that on the night of 15 April 1946 Oscar Morrison and Holt Neal, police officers of the city of Winston-Salem, took possession of an automobile on Mickey Mill Road in the eastern section of the city, which they thought had been used in the illegal transportation of nontax-paid whisky, and drove it to the city lot where it was parked for the night. During the night the automobile was stolen from the city lot, and there is evidence, circumstantial and presumptive, tending to connect the defendants with its disappearance. The unanimous opinion of the Supreme Court was delivered again by Chief Justice Stacy. The opinion states:

'The case was here at the Fall Term, 1946, on an indictment which laid the ownership of the property in the City of Winston-Salem. The officer who seized the property was alone entitled to hold it, or approve bond for its return, and it was suggested the right to the property should be laid in the seizing officer or in the custody of the law. 227 N.C. 103, 40 S.E.2d 699.'

The Court held that Oscar Morrison, one of the seizing officers, was entitled to hold the automobile and to approve bond for its return, thus he had a special interest therein and consequently there was no fatal variance. The verdict and judgments were upheld.

The case of State v. Hicks, which was before this Court twice on appeal, is also apposite. On the first appeal, 233 N.C. 31, 62 S.E.2d 497, defendant and Chesley Morgan Lovell were tried upon two indictments, one of which charged Hicks and Lovell with conspiring to damage a building owned by the Jefferson Standard Broadcasting Company by the use of dynamite or other high explosive; and the other charged them with conspiring 'to maliciously commit damage and injury to and upon the real property of the Jefferson Standard Broadcasting Company,' and 'to wantonly and wilfully injure the personal property of the Jefferson Standard Broadcasting Company, to-wit: Radio broadcasting equipment.' Defendant Lovell pleaded guilty as charged in both indictments. The two indictments were consolidated for trial. Hicks pleaded not guilty to both indictments. The jury returned a verdict of not guilty as to him as to the charge of conspiracy to damage a building owned by the Jefferson Standard Broadcasting Company, but 'Guilty of conspiracy to damage real property.' From judgment on the verdict, Hicks appealed. The proof was to the effect that Hicks and Lovell conspired to maliciously commit damage and injury to the property of the Duke Power Company. The Court held that there was a fatal variance between the allegations in the indictment and the proof, and that this question may be raised by motion for judgment as of nonsuit. The Court's opinion closed with this language: 'The motion for judgment as of nonsuit should have been allowed with leave to the Solicitor to secure another bill of indictment, if so advised.' On the second appeal, 233 N.C. 511, 64 S.E.2d 871, this case was a criminal prosecution for conspiracy tried upon a two-count indictment. The first count charged that the defendant conspired 'with Chesley Morgan Lovell and other persons to the State unknown' to violate G.S. § 14-127 by maliciously committing damage and injury upon the real property of the Duke Power Company, and the second count charges that the defendant conspired 'with Chesley Morgan Lovell and other persons to the State unknown' to commit a misdemeanor denounced by G.S. § 14-160 by wantonly and wilfully injuring the personal property of the Duke Power Company, to wit: 'electrical transformers and other equipment of said Duke Power Company * * * located upon and near the property of the Jefferson Standard Broadcasting Company.' Before pleading to the indictment in that case, defendant filed a plea of former acquittal setting forth the indictments in the case on his former appeal and the result of the former trial and the indictment in this case, and concluding from these matters that the crimes described in the indictment in the present case are identical with those charged against him in the indictments on his former trial, and that by reason thereof his acquittal upon those indictments constituted a bar to the present prosecution. Defendant tendered these two issues: (1) Has the defendant been formerly acquitted of the charge contained in the first count of the indictment in the instant case? (2) Has the defendant been formerly acquitted of the charge contained in the second count of the indictment in the present case? He prayed the court to submit the issues to the jury before the submission of the general issue of guilt, and to allow him to offer evidence before the jury on the trial of the issues to establish the identity of the two counts in the present indictment with the offenses charged in the previous indictments. The trial judge 'refused to submit to the jury the two issues tendered by the defendant * * *, and * * * held, as a matter of...