State v. . Nash , 86 N.C. 650 ( 1882 )

Ruffin, J.

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 for the same offence; the same, both in fact and in laiv. See note to 1st Bennett and Heard’s Leading Crim. Cases, 522.

In the principal case of Rex v. Vandercomb, 516, there referred to, and which was argued, as stated by Mr. Justice Buller, before all the judges of England, it was held, that unless the first indictment were such, as that the defendant might have been convicted upon it by proof of the facts contained in the second, then, an acquittal on the former can be no bar to a prosecution for the latter. In State v. Jesse, 3 Dev. & Bat., 98, it was said by this.court, in discussing the very point, that two offences may have several circumstances in common, and yet to constitute either some other circumstance is to be added ; and it is the allegation on the record of this additional circumstance, peculiar to each, which constitutes them distinct crimes; and therefore it is not always sufficient to make a judgment on an indictment for one a bar to an indictment for the other, that the same evidence may be competent and material to both. The true test is as stated in Rex v. Vandercomb: Could the defendant have been convicted upon the first indictment upon proof of the facts, not as brought forward in evidence, but, as alleged in the record of the second.

Upon this principle it was, that the court of King’s Bench held in Rex v. Taylor, 3 B. and C., 502, that if it appeared manifest to the court, from the inspection of the two indictments, that the offences charged could not be the same, the defend-, ant could not by averment show them to be the same, because that would be to contradict the record.

Now to apply this principle to the present ease : The first indictment was for an assault on one Spivey; could the defendant have possibly been convicted thereof upon proof of the averments contained in the record of the second, to wit, of an assault upon the prosecutor Reynolds ?

A battery is violence done to the person of another, and though there be but a single act of violence committed, yet if its consequences affect two or more persons, there must be a corresponding number of distinct offences perpetrated. Accordingly it has been held that an acquittal on a charge-of attempting to poison A, was no bar to an indictment for attempting to poison B, although on the same occasion and by the same act of preparation^, because in such case, it was said, there were two distinct offences. People v. Warren, 1 Parker C. C., 388. In like manner it was held in State v. Standifer, 5 Porter, 523, that if one commit an assault by one stroke upon two persons, a conviction or acquittal upon an indictment alleging the assault upon one, was no bar to a subsequent prosecution for the assault on the other. And still more to the purpose was the ruling of our own court in State v. Merritt, Phil., 134, to the effect, that an indiscriminate assault upon several persons was an assault upon each' and every one of them.

It is true that a decision to the contrary of this was ren-rendered by the court of Vermont in State v. Damon, 2 Tyler, 390; but it is said in a note to Arehbold’s Criminal Pr. and PL, 112., to be against the weight of authority and repugnant to reason, and by Bennett and Heard, 584, to be clearly not law.

The decision in State v. Jesse, supra, has been twice approved by the court (State v. Birmingham, Busb., 120, and State v. Revels, Ib, 200,) and the principle upon which it proceeded is clearly asserted in many of the elementary writers on criminal law, (1 Chitty, 457; 2 East., P. C., 519; 1 Wharton, 505,) and as it seems to us is easily distinguished from the State v. Town of Fayetteville, 2 Mur, 371, where the conduct complained of was one of mere neglect, and the omitted duty of keeping the streets in repair was an entire one, not susceptible of division into parts, so that each may become the subject of a prosecution.

How can it be certainly known what motive induced the verdict of acquittal in the former trial? For aught that can be seen, the jury in that case may have wholly disbelieved the evidence as to Spivey’s being stricken, or even as. to his being one of the company fired upon. If so, then clearly the verdict should not stand in the way of a prosecution for the battery upon one who was present and who was actually injured. It .is true the last verdict establishes the fact both of his presence and (he injury done him, but in the case supposed, which are we to adopt — the former or the latter finding ? No such difficulty can arise in the case of two prosecutions for the same identical act, for then the first verdict will conclude as to' the truth of every matter necessary to support it, and will draw to it every intendment as well of law as of fact — a thing that cannot be done in favor of two contradictory verdicts.

The only safe rule is to stand by the decisions of our courts, and to hold that the plea of former acquittal cannot avail, unless there should be an exact and complete identity in the two offences charged.

Our conclusion therefore is that the plea relied on was not a bar to the pending prosecution against the defend mt, and the state was entitled to judgment upon the special verdict.

The judgment below is reversed, and this opinion will be certified.