State v. McIntosh , 260 N.C. 749 ( 1963 )

133 S.E.2d 652 (1963) 260 N.C. 749

STATE
v.
Larry M. McINTOSH.

No. 580.

Supreme Court of North Carolina.

December 19, 1963.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

Robert S. Cahoon, Greensboro, for defendant appellant.

HIGGINS, Justice.

The defendant contends his trial and acquittal on the charge that he assisted Pollart in escaping detection, arrest and punishment, knowing Pollart had committed the robbery, was in effect an acquittal of the charge that he was a participant in that robbery. Admittedly, the plea of former jeopardy should have been sustained if the appellant had already been tried for the robbery.

The cases are numerous in which this Court has considered pleas of former jeopardy. Uniformly the plea has been held good if the first trial was upon a bill of indictment which embraced the offense charged in the second trial. This is the crucial question: Has the defendant been put in jeopardy for the same offense? In State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838; State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424; State v. Hicks, 233 N.C. 511, 64 S.E.2d 871; State v. Bell, 205 N.C. 225, 171 S.E. 50; State v. Malpass, 189 N.C. 349, 127 S.E. 248, and many others this Court has considered the problem. "To support a plea of former acquittal it is not sufficient that the two prosecutions should grow out of the same transaction, but they must be the same offense—the some both in fact and law. * * * This test applied in the Barefoot case is indubitably the correct test for determining, upon a plea of former jeopardy, whether or not offenses are the same in fact and in law. Our Court has consistently applied this test in a long line of opinions. The number of cases is too great to justify a complete listing here, but the following are typical." (citing many cases) State v. Birckhead, supra.

Unquestionably armed robbery under G.S. § 14-87 differs in fact and in law from accessory after the fact under G.S. § 14-7. Otherwise a principal might be guilty of robbery and then be guilty of aiding and abetting himself or some other participant in escaping detection, arrest and prosecution. On a charge for robbery the State must show active participation or accessory before the fact. On a charge of accessory after the fact the State must show (1) robbery, (2) the accused knew of it and (3) possessing that knowledge he assisted the robber in escaping detection, arrest and punishment. State v. Williams, 229 N.C. 348, 49 S.E.2d 617. A participant in a felony may no more be an accessory after the fact than one who commits larceny may be guilty of receiving the goods which he himself had stolen. The crime of accessory after the fact has its beginning after the principal offense has been committed. How may an accessory after the fact render assistance to the principal felon if he himself is the principal felon? A comparison of G.S. § 14-5, defining accessory before the fact, and G.S. § 14-7, accessory after the fact, clearly indicates the necessity of holding the latter is a substantive crime—not a lesser degree of the principal crime. State v. Jones, 254 N.C. 450, 119 S.E.2d 213.

The defendant's trial and acquittal on the charge of accessory after the fact did not bar the State from trying him for the armed robbery. Judge Shaw correctly overruled the plea of former jeopardy. State v. Hooker, 145 N.C. 851, 59 S.E. 866.

We have examined the numerous assignments of error based on objections to the evidence and to the charge and find them without merit.

No error.