State v. . Rice

Mar 23, 1932

Versions:202 N.C. 411

163 S.E. 112

1932 N.C. LEXIS 523

Brogden, J.

Thе defendant was charged with a capitаl felony. When the case was called for trial the solicitor announced that he would not press the charge for capitаl felony but would ask for a verdict for murder ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the second degree or manslaughter. The defendant pleaded not guilty and a jury was sworn and еmpaneled. The State began to offer testimony and introduced a witness named Delbert Shelton, who *413 proceeded to testify as to tbe events resulting in tbe killing of McKinley Sbelton by tbе defendant. After tbe first witness for tbe State bad рractically completed bis direct еxamination tbe trial judge, of bis own motion, brought into- tbe case by consolidation anothеr indictment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍charging tbe defendant with assault with a deadly weapon with intent to kill, committed by tbe defendant against Delbert Sbelton, tbe State’s witness. Hence tbe question of law arises: Did tbe trial judge have power to consolidate tbe indictments under tbe circumstances?

C. S., 4622, regulates tbe consolidation of criminal aсtions. This ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍statute has been construed in many decisions of this Court. In S. v. Combs, 200 N. C., 671, 158 S. E., 252, it is written: “Tbe court is expressly authorized by statute in this State to order tbe consolidation for trial of two or more indictments in whiсh tbe defendant or defendants are charged with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍crimes of tbe same class, which are so connected in time or placе as that evidence at tbe trial of onе of tbe indictments will be competent and аdmissible at tbe trial of tbe others.” S. v. Lewis, 185 N. C., 640, 116 S. E., 259; S. v. Smith, 201 N. C., 494; S. v. Malpass, 189 N. C., 349, 127 S. E., 248. Moreovеr, it has been generally held that if separаte offenses are charged in tbe ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍same warrant or indictment, they are to be cоnsidered as separate counts. S. v. Jarrett, 189 N. C., 516, 127 S. E., 590.

Without debating tbe question as to whether tbe indictments сould have properly been consolidated at tbe beginning of tbe trial, it is obvious that tbе consolidation thereof, pending tbe taking of testimony on tbe indictment for murder, was prеjudicial to tbe defendant. He was affordеd no opportunity to pass upon tbe impartiality of tbe jury upon tbe assault chargе, nor bad be been permitted to plead to such charge. These principles аre fundamental and tbe failure to apply them in tbe case at bar entitles tbe defendant to a new trial. S. v. Jackson, 82 N. C., 565; S. v. Cunningham, 94 N. C., 824.

New trial.