Citation Numbers: 125 S.E. 543, 188 N.C. 799
Judges: Stacy
Filed Date: 12/19/1924
Status: Precedential
Modified Date: 10/19/2024
Criminal prosecution, tried upon an indictment charging the defendant with the unlawful, willful and felonious breaking and entering of a certain storehouse in the possession of G. W. Shuler, sheriff of Graham County, with intent to commit the crime of larceny therein, in violation of the provisions of C. S., 4235.
From an adverse verdict and judgment pronounced thereon, the defendant appeals, assigning errors. At the same term of court, and on the day before the present trial was had, the defendant was tried under a different bill of indictment, in which the possession of the property was laid in one C. D. Mort. At the close of the evidence on the first trial, and on motion of the defendant, there was a judgment as of nonsuit entered under C. S., 4643. Thereupon, the solicitor sent the present bill before the grand jury, in which the possession of the property is laid in G. W. Shuler, sheriff of Graham County. When called upon to plead, the defendant entered a plea of former acquittal, or former jeopardy, and not guilty.
His plea of former acquittal, or former jeopardy, was properly overruled. S. v. Drakeford,
The law applicable is stated in 12 Cyc., 266, as follows: "If the accused is acquitted by direction of the court on the ground of material variance, he cannot plead the acquittal as a bar, for he has never been in jeopardy, and when tried on a new indictment the crime then alleged is not the same crime as in the former indictment. And it has been held that if the accused on the prior trial maintained that the variance was material, and the court directed a verdict of acquittal on that ground, he cannot subsequently on his plea of former acquittal allege or prove that it was not material." And this is supported by a long citation of authorities, including, among others from this State, S. v. Birmingham,
In construing the statute, his Honor stated in the presence of the jury that the intent with which the defendant entered the storehouse in *Page 801 question was not material to the case; and later he instructed the jury that if they believed the evidence they would find the defendant guilty. This entitles the defendant to a new trial.
The trial court was doubtless misled by the dictum in S. v. Hooker,
It is clear, we think, from a reading of the statute as now written, that the "intent to commit a felony or other infamous crime therein" is one of the essential elements of the offense charged and necessary to be shown in order to warrant a conviction. This having been eliminated on the trial, it becomes necessary to remand the cause for another hearing.
New trial.