State v. Griffin , 51 N.C. App. 564 ( 1981 )

277 S.E.2d 77 (1981)

STATE of North Carolina
v.
Chesley L. GRIFFIN, Jr.

No. 8021SC1135.

Court of Appeals of North Carolina.

April 21, 1981.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., J. Chris Prather, Raleigh, for the State.

Morrow & Reavis by John F. Morrow, Winston Salem, for defendant-appellee.

WEBB, Judge.

The Fifth Amendment to the Constitution of the United States provides in part:

"[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...."

The United States Supreme Court has held that if a person has pled guilty to a crime and is later charged with another crime, the proof of which would prove all the elements of the crime to which he has previously pled guilty, he has then been tried twice for the first crime. This is proscribed by the double jeopardy clause of the Fifth Amendment. See Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). According to the stipulation made a part of the record in this case, the State relies on the charge of failing to yield the right-of-way to support the charge of death by vehicle. If the defendant were tried for death by vehicle, he would be put in jeopardy for a second time for the charge of failing to yield the right-of-way. The judgment of the superior court is affirmed.

The State contends we are governed by State v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968). In that case, the defendant pled guilty to assault with a deadly weapon with intent to kill inflicting serious bodily injury not resulting in death. After the plea was entered the victim died. The defendant was then convicted of second degree murder. Our Supreme Court rejected the defendant's double jeopardy plea. It held that when the State proved the elements of second degree murder, it did not have to prove all the elements of assault with a deadly weapon with intent to kill inflicting serious bodily injury not resulting in death. An intent to kill and a serious bodily injury not resulting in death were elements of the felonious assault charge to which the defendant pled guilty but were not elements of second degree murder. This is the distinguishing feature between Meadows and the case sub judice.

The State also argues that at the time the defendant pled guilty to failure to yield the right-of-way, the crime of death by vehicle was not complete. Whether a new element arises after the defendant had pled guilty to the lesser charge is not the test of Vitale. The test is whether the defendant will be placed in jeopardy twice for the same offense.

Affirmed.

HEDRICK and ARNOLD, JJ., concur.