State v. . Negro Lewis , 9 N.C. 98 ( 1822 )

At September Term, 1821, of PITT Superior Court, two bills of indictment against the prisoner were found by the grand jury, the one for burglary and larceny, the other for a robbery. The larceny in the one bill and the robbery in the other were for the same goods and chattels, and there was but one taking. At the same term the prisoner was found guilty of the larceny and not guilty of the burglary. On this (99) conviction, the Attorney-General did not pray any judgment, nor was any pronounced; and at the time of the prisoner's arraignment no motion was made by his counsel that the prosecuting officer should elect on which indictment he would try the prisoner. At March Term, 1822, the prisoner was brought to the bar, and the Attorney-General directed a nol pros. to be entered on the indictment which had been tried at the preceding term, butNorwood, J., refused to permit the nol pros. The Attorney-General then moved to arraign the prisoner on the indictment for robbery. This also was refused by the court until the first indictment should be disposed of, and on the refusal of the Attorney-General to pray judgment on the first indictment, the court quashed the indictment for robbery. On motion of prisoner's counsel, his clergy was allowed him on the conviction for larceny, and on the further refusal of the Attorney-General to pray judgment, the prisoner was ordered to be discharged; whereupon, in behalf of the State, the prosecuting officer appealed to this Court. It is admitted in this case that both indictments are for the samefelonious taking of the same goods. The defendant is found guilty of a grand larceny on that indictment which charges a burglary and stealing.

The other indictment is for a robbery. A robbery is a larceny, but of a more aggravated kind. The first is a simple larceny. The other is a compound or mixed larceny, because it includes in it the aggravation of a felonious taking from the person.

Now, suppose the defendant should be tried and found guilty on the second indictment? It must certainly follow that he had been tried twice for the felonious taking of the same goods. It is true, if the first conviction is a bar to a trial on the second indictment, the prisoner would go untried as to that which constitutes the (100) difference between simple larceny and mixed and compound larceny, viz., a taking from the person. In such case he would be convicted of a felonious taking, but not of a felonious taking from the person. Whereas, should he be tried and convicted on both indictments, it might be said he had been convicted twice of a felonious taking, and once of a felonious taking from the person, which I think would be at points with the principle "that no one should be twice put in peril for the same crime." This principle has such deep root in the criminal law, and is cherished by so many judicial decisions, that it is not deemed necessary to refer to any of them.

I therefore think the conviction on the first indictment for burglary and larceny a good plea to a trial on the second indictment for robbery. I also think that the record of these proceedings and the admissions of the Attorney-General were sufficient to authorize the judge below to discharge the prisoner. And in this opinion the rest of the Court concurred.

PER CURIAM. Affirmed.

Cited: S. v. Cross, 101 N.C. 779.