State v. Watts

• Decision Date: 31 January 1880
• Citation: 82 N.C. 656
• Court: North Carolina Supreme Court
• Parties: STATE v. JOSEPH WATTS.

82 N.C. 656

STATE

v.JOSEPH WATTS.

Supreme Court of North Carolina.

January Term, 1880.

INDICTMENT for an Assault, tried at Fall Term, 1879, of HAYWOOD Superior Court, before Graves, J.

Verdict of guilty, judgment, appeal by defendant.

Attorney General and J. M. Gudger, for the State .

Messrs. A. T. & T. F. Davidson, for defendant .

ASHE, J.

The defendant was tried on two separate indictments: the first, for an assault and battery, and the second, for an assault with intent to commit a rape. The jury found him guilty of the assault, but not guilty of the assault with intent to commit a rape. The defendant moved in arrest of judgment upon the ground that the two indictments could not be joined, but His Honor overruled the motion and the defendant appealed.

The rule for joining different offences in the same bill of indictment is, that it always may be done when the grade of the offences and the judgments are the same. Archbold's Cr. Pl., 61; State v. Speight, 69 N. C., 72.

The offence charged in each of these bills of indictment is a misdemeanor, and are of the same grade, but the punishments are different. Upon conviction on the first indictment, the punishment is fine or imprisonment, or both at the discretion of the court, and upon the last imprisonment in the state prison for not less than five nor more than fifteen years. On account of this difference in the punishment to be inflicted, it is contended that there is a misjoinder and the indictments cannot be sustained. The two indictments relate to the same transaction and are to be regarded and treated as one bill of indictment containing two counts. State v. Johnson, 5 Jones, 221. In that case where there were two bills of indictment for the same offence, CHIEF JUSTICE PEARSON said, “the effect was simply to add another count to the bill of indictment; the whole constituted but one proceeding, to be treated as if the bill, at the first, had contained three counts instead of one. If the counts be inconsistent, it is ground for a motion to quash, or the state may be ruled to elect upon which the trial shall be had; this is only done to prevent injury to the accused, but never when the counts are only variations in the mode of charging the same offence; and the fact that the counts are all in one bill or in two bills, both being found by the grand jury, makes no kind of difference.”

The two indictments then are to be taken as two counts in one bill of indictment, and the question is, can these two counts be joined in the same bill? The authorities are in conflict upon this point. Both Archbold and Bishop, at the foot of the precedents given by them for an indictment for an assault with intent to commit a rape, suggest, “add a count for a common assault.” But admitting there is a misjoinder of counts, can it be taken advantage of by a motion in arrest of judgment? The current of authorities, both English and American, is, that it cannot be done. Archbold, in his criminal pleadings, lays it down that an objection to a misjoinder of counts may be taken...