State v. . Lewis
116 S.E. 259
N.C.
1923
Check Treatment
Adams, J.

On motion of the prosecution, his Honor ordered the consolidation of all the indictments, and the defendant excepted. If the several bills could have been incorporated in a single .indictment as separate counts, there was no sufficient legal objection to the order of consolidation, and in the absence of legal objection the question was addressed to the sound discretion of the court.

Two offenses, it is true, cannot be charged in the same count, for in such case the count would be bad for duplicity (S. v. King, 106 N. C., 683); but, says Archbold, “There is no objection to stating the same offense in different ways, in as many different counts of the indictment as you may think necessary, even although the judgment on the several counts be different, provided all counts be for felonies or all for misdemeanors.” 1 Archbold’s Cr. Pr. and Pld., 93, 95. Two of the counts charge the defendants with a conspiracy. Formerly a conspiracy committed with deceit and intent to defraud was punishable by imprisonment in the penitentiary, but by virtue of a change in the statute it is not now a felony (C. S., 4171), although the punishment is more severe than that prescribed for misdemeanors at common law. The Code, sec. 1097; Rev., sec. 3293; C. S., 4173; S. v. Mallett, 125 N. C., 723; S. v. Howard, 129 N. C., 662.

*643 The- reason wbieb was urged in England against tbe joinder of a felony with a misdemeanor was that the defendant would thereby lose the benefit of having a copy of the indictment and a special jury, and of making his full defense by counsel (1 Archbold, 93, n. 2), but with us this reason cannot apply, and it is now held that different counts relating to the same transaction or to a series of transactions tending to one result may be joined although the offenses are not of the same grade. S. v. Burnett, 142 N. C., 578; S. v. Howard, 129 N. C., 585; S. v. Jarvis, ibid., 698; S. v. Harris, 106 N. C., 683; C. S., 4622; S. v. Mills, 181 N. C., 531; Bishop’s New Cr. Pro., sec. 423 (4).

The inclusion of the last bill charging a separate offense against the defendant Lewis is not fatal on the ground of multiplicity or misjoinder, because in another on which they were convicted the defendants were jointly charged with the same offense, one as principal and the other as accessory. S. v. Harris, 106 N. C., 683. There was no motion at the close of the evidence to require an election, and, besides, the jury returned a verdict upon each of the counts. As the rights of the appellant seem to have been carefully guarded at the trial, we perceive no reason for holding as a matter of law that the consolidation of the several indictments necessarily operated to his prejudice, and we fail to discover any indication of an abuse of his Honor’s discretion.

The exception to the court’s refusal to dismiss the action as in case of nonsuit is without merit, for evidence in support of the verdict was plenary; and as Padrick and Lewis were indicted for unlawfully conspiring together to commit a crime his Honor properly instructed the jury that as to this charge both must be found guilty or both not guilty.

Hpon examination of the whole record, we conclude that the other exceptions require no discussion. We find

No error.