State v. Hill , 1974 N.C. App. LEXIS 2169 ( 1974 )

CAMPBELL, Judge.

Defendant asserts that this action should have been dismissed upon his motion for that he was denied the right to a speedy trial. This offense occurred 1 July 1972, and the defendant was not tried therefore until 27 May 1974. The criterion to be applied is stated in State v. Harrell, 281 N.C. 111, 115 187 S.E. 2d 789, 791 (1972), as follows:

“The threefold purpose of the constitutional guaranty of a speedy trial is to protect the accused against prolonged imprisonment, relieve him of the anxiety and public suspicion attendant upon an untried accusation of crime, and prevent him from being exposed to trial after the lapse of so great a time that the means of proving his innocence may have been lost. [Citations omitted.]

The word speedy cannot be defined in specific terms of days, months or years, so the question whether a defendant has been denied a speedy trial must be answered in light of the facts in a particular case. Four factors should be considered in determining the reasonableness of a delay: the length of the delay, the reason for the delay, prejudice to the defendant, and waiver by the defendant. [Citations omitted.]”

The record discloses that no detainer was ever issued or recorded in the defendant’s prison jacket relating to the indictment for secret assault. Thus this case did not effect the defendant’s prison record. The defendant completed all sentences on unrelated offenses and was released from Western Correctional Center on or about 24 April 1974. The defendant was then transferred to jail for confinement pending trial or release on bond on the present charges. On 19 April 1974, the defendant made a motion for an appearance bond. This came on for hearing on 27 April 1974, and the judge indicated that if defendant were not tried at the next term of criminal court, he would be released on a $1,000 bond. The defendant was tried at the next criminal term of court. The defendant never requested that this case be placed upon the court calendar for trial. The record further discloses that any delay in the trial was not due to neglect or wilfulness on the part of the State but rather because of court time being occupied with other cases. The defendant does not show any prejudice in the instant case because of any delay in his trial. The defendant did not show any absence of witnesses or any other loss of ability to prove his innocence. In fact, one witness, Costner, whose name the defendant had suggested, was another inmate whom the State offered to procure and have available if the defendant desired him. The defendant stated that this witness was not desired.

In the absence of any demand for a speedy trial, prejudice to the defendant, neglect or wilful delay on the part of the prosecution, we find no error in the denial of the motion to dismiss for failure to afford a speedy trial.

The defendant next assigns as error the refusal of the court to grant a continuance of the charge of an assault with a deadly weapon with intent to kill inflicting serious injury. The defendant asserts that this indictment was returned just one day prior to the trial and that he was not informed of it until a few minutes before the trial. While ordinarily this might justify a continuance of a trial, we do not think that in the instant case it did so. The assault charge grew out of the same occurrence, the same attorney was appointed to represent the defendant, and the defendant shows no prejudice as a result of the second offense being tried at the same time with the first offense. In the absence of any showing of any prejudice as a result of the trial court’s denial of the motion for a continuance, we find no merit in this assignment of error.

The third assignment of error argued by the defendant is that the two charges against the defendant growing out of the same episode constituted double jeopardy in that one offense was split into two parts.

The rule governing this has been summarized as follows:

“Where the same act constitutes a violation of two statutes and, in addition to any common elements, an additional fact must be proved in each which is not required in the other, the offenses are not the same in law and in fact, and conviction or acquittal in the one will not support a plea of former jeopardy in the other. ...” 2 Strong, N. C. Index 2d, Criminal Law, § 26, p. 520. In accord, State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838 (1962).

In the instant case, the offense of secret assault contains five elements: (1) assault and battery, (2) deadly weapon, (3) intent to kill, (4) secret manner, and (5) malice. The second offense with which the defendant was charged, namely, assault with a deadly weapon with intent to kill inflicting serious injury, requires: (1) assault and battery, (2) deadly weapon, (3) intent to kill, and (4) serious injury.

Since each offense has additional and distinct elements not present in the other, an accused may be convicted of both offenses. This was answered in State v. Richardson, 279 N.C. 621, 629, 185 S.E. 2d 102, 108 (1971), as follows:

“. . . We perceive no sound reason why two felonies should be treated as one simply because they share a single essential element, when they consist of additional separate elements.”

An indictment for secret assault will not support a conviction for felonious assault with a deadly weapon with intent to kill inflicting serious injuries as the elements are different. See State v. Lewis, 274 N.C. 438, 164 S.E. 2d 177 (1968).

We, therefore, find no merit in this assignment of error.

The remaining assignments of error brought forward by the defendant pertain to the charge of the trial judge to the jury and particularly with regard to the meaning of secret assault.

We have reviewed the charge; and when considered as a whole, we think the charge was adequate and sufficient. The charge with regard to secret assault conforms to the charge which this Court approved in State v. Lewis, 1 N.C. App. 296, 161 S.E. 2d 497 (1968). While State v. Lewis, supra, was found in error and remanded in 274 N.C. 438, 164 S.E. 2d 177 (1968), this error was in another aspect of the case and not because of any error pertaining to the charge of secret assault.

The charge as a whole was free of prejudicial error.

We think the defendant had a fair trial free of prejudicial error, and we, accordingly, find

No error.

’ Judges Britt and Vaughn concur.