State v. . Bell
171 S.E. 50
N.C.
1933
Check Treatment
Stact, C. J.

The case was tried upon the theory that if the defendants conspired to burglarize or to rob the home, of George Dryman and a murder were committed by any one of the conspirators in the attempted perpetration of the burglary or robbery, each and all of the defendants *227 would be guilty of tbe murder. This is a correct proposition of law. S. v. Donnell, 202 N. C., 782, 164 S. E., 352; S. v. Miller, 197 N. C., 445, 149 S. E., 590. It is provided by C. S., 4200 that a murder “which shall be committed in the perpetration or attempt to perpetrate any . . . robbery, burglary or other felony, shall be deemed to be murder in the first degree.”

The evidence discloses that the conspiracy was to rob, and not to murder, George Dryman; that the homicide was committed in the attempted perpetration of the robbery; and the defendant, Eobert Bell, offered to show, under his plea of former jeopardy, that he had theretofore been tried and acquitted on the charge of a conspiracy to rob the deceased.

It is clear that the attempted robbery and the homicide grew out of the same transaction, and so far as Eobert Bell is concerned, the facts required to convict him on the second indictment would necessarily have convicted him on the first. S. v. Freeman, 162 N. C., 594, 77 S. E., 780; S. v. Hankins, 136 N. C., 621, 48 S. E., 593; S. v. Lawson, 123 N. C., 740, 31 S. E., 667; S. v. Gross and White, 101 N. C., 770, 7 S. E., 715; S. v. Nash, 86 N. C., 650.

It is true, there is a difference between a conspiracy to burglarize a house with intent to commit robbery therein, and a conspiracy to burglarize it with intent to commit murder (S. v. Allen, 186 N. C., 302, 119 S. E., 504), but here the murder was incidental to the attempted robbery, as all the evidence shows, and upon this theory the case has been, tried.

There was but one act, one intent and one volition, so far as Eobert Bell is concerned. 8 R. C. L., 144. He only furnished the conveyance, and remained a distance from the scene of the crime, nevertheless, he was one of the conspirators. S. v. Whitehurst, 202 N. C., 631, 163 S. E., 683. It will be observed the death of the deceased did not intervene between the first and second indictments. 8 R. C. L., 148.

In a case practically on all-fours with the one at bar, S. v. Mowser, 92 N. J. L., 474, 106 Atl., 416, 4 A. L. R., 695, the New Jersey Court of Errors and Appeals held that where robbery is by statute made a constituent element of murder in the first degree when death ensues in the perpetration of the robbery, a conviction of robbery will be a bar to a prosecution for a murder arising out of the same transaction:

In discussing the principles determinative of the question presented, the Court said:

“The principle to be extracted from well-considered cases is that by the term, ‘same offense,’ is not only meant the same offense as an entity and designated as such by legal name, but also any integral part of such offense which may subject an offender to indictment and punishment. *228 Reg. ex rel. Thompson v. Walker, 2 Moody & R., 457; Reg. v. Stanton, 5 Cox, C. C., 324.
“When such integral part of tbe principal offense is not a distinct affair, but grows out of tbe same transaction, tben an acquittal or conviction of an offender for tbe lesser offense will bar a prosecution for tbe greater.
“To adopt any other view would tend to destroy tbe efficacy of tbe doctrine governing second jeopardy wbicb is embedded in our organic law as a safeguard to tbe liberties of tbe citizens.
“In discussing tbis interesting topic, Mr. Bisbop, in Yol. 1, 5tb ed., paragraph 1057, of bis learned treatise on Criminal Law, says: Hut where tbe conviction or acquittal is upon an indictment covering no more than one of tbe smaller crimes, included, as before mentioned, within a larger, tbe question arises, whether tbis will bar an indictment embracing one of tbe larger. If it will not bar, tben the prosecutor may begin with tbe smallest, where there are several crimes included with one another, and obtain successive convictions ending with tbe largest; while, if be bad begun with tbe largest, be must there stop, a conclusion repugnant to good sense. Besides, as tbe larger includes tbe smaller, it is impossible a defendant should be convicted of tbe larger without being convicted of tbe smaller; and thus, if be has been already found guilty of tbe smaller, be is, when on trial for tbe larger, in jeopardy a second time for tbe same, namely, tbe smaller offense. Some apparent authority, therefore, English and American, that a jeopardy fon tbe less is no bar to an indictment for tbe greater, must be regarded as unsound in principle; while tbe doctrine which bolds it to be a bar rests firmly on adjudication also.’ ”

Tbe point is made that tbe record is too indefinite to show tbe result of tbe first trial. Tbe record is indefinite, but jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in tbe case. S. v. Ellis, 200 N. C., 77, 156 S. E., 157; 16 C. J. 236-237.

It is also observed tbe date of tbe alleged offenses is laid in tbe indictments as 17 April, 1933, tbe date on wbicb tbe term of court convened. Tbe evidence shows that tbe attempted robbery took place on 23 January, 1933, and tbe deceased died 12 February following.

Tbe defendant has tbe burden of proof (S. v. White, 146 N. C., 608, 60 S. E., 505) on bis plea in bar, and be may not be able to make it good, but tbe court erred in declining to bear him on bis plea of former jeopardy. S. v. King, 195 N. C., 621, 143 S. E., 140; S. v. Ellsworth, 131 N. C., 773, 42 S. E., 699.

New trial.