State v. . Davis
25 S.E.2d 164
N.C.
1943
Check Treatment
Stagy, C. J.

Tbe appeal poses tbe question wbetber tbe defendant is entitled to further consideration on bis plea of former jeopardy. Tbe record suggests a negative answer.

In tbe first place, tbe evidence offered is not sufficient to sustain tbe plea. Tbe warrant in tbe city court was not as broad as tbe four-count indictment, nor did it purport to cover tbe same time. S. v. Dills, 210 N. C., 178, 185 S. E., 677. It is true, tbe indictment antedates tbe warrant, and if tbe two were identical and for a continuing offense, tbe plea would probably be good. S. v. Johnson, 212 N. C., 566, 194 S. E., 319. But sucb is not tbe case. Tbe instant indictment involves mucb more than tbe previous warrant, albeit tbe several offenses may bave arisen out of tbe same transaction.

In S. v. Harrison, 184 N. C., 762, 114 S. E., 830, it was beld tbat a conviction under tbe Volstead Act was no bar to a prosecution for violating a State statute, tbougb tb'e two indictments were founded on identically tbe same state of facts. There, tbe violations were of different laws. Here, tbe charge includes, not only tbe same, but also other laws. Tbe plea of former jeopardy, to be good, must be grounded on tbe “same offense,” both in law and in fact. S. v. Hankins, 136 N. C., 621, 48 S. E., 593; S. v. Taylor, 133 N. C., 755, 46 S. E., 5; S. v. Nash, 86 N. C., 650.

Likewise, in S. v. Malpass, 189 N. C., 349, 127 S. E., 248, and again in S. v. Midgett, 214 N. C., 107, 198 S. E., 613, it was beld tbat where tbe same act violated two State statutes, a prosecution for tbe one was not a bar to a subsequent prosecution for tbe other. Tbe pertinent authorities are fully reviewed in tbe Malpass and Midgett cases, supra.

Secondly, tbe defendant is deemed to bave abandoned bis plea of former jeopardy by not tendering and requesting tbe court to submit to tbe jury tbe issue arising thereon. S. v. King, 195 N. C., 621, 143 S. E., 140.

Moreover, tbe plea of former jeopardy is a plea in bar to tbe prosecution, and not a plea to tbe indictment. It poses an inquiry, not into tbe conduct of tbe defendant, but as to what action tbe court has taken on a former occasion. S. v. Ellsworth, 131 N. C., 773, 42 S. E., 699. Unless it can be determined as a matter of law on tbe record, an issue is raised for submission to tbe jury. Tbe form of tbe issue usually submitted in sucb cases is: “Has tbe defendant been formerly convicted (or acquitted) of tbe offense wherewith be now stands charged?” It will be observed that this is a collateral civil issue, to be determined before *57 entering upon the prosecution. If answered in the affirmative, and allowed to stand, it bars the prosecution. If answered in the negative, the defendant may preserve his exception, if so advised. S. v. Pollard, 83 N. C., 597. When the plea is not sustained, the prosecution then begins unaffected by the interlocutory inquiry in respect of the former action of the court. S. v. Ellsworth, supra.

The practice of trying the pleas of former jeopardy and not guilty separately finds support among all the authorities, S. v. Winchester, 113 N. C., 641, 18 S. E., 657; S. v. Respass, 85 N. C., 534, although in a number of cases they have been tried together without prejudicial effect. S. v. Dills, 210 N. C., 178, 185 S. E., 677; S. v. Taylor, 133 N. C., 755, 46 S. E., 5 S. v. Winchester, supra; S. v. Smith, 170 N. C., 742, 87 S. E., 98.

In the instant case, the evidence was not sufficient to sustain the plea, hence the trial court was correct in deciding it as a matter of law.

Affirmed.