State v. Midyette

154 S.E.2d 66 (1967) 270 N.C. 229

STATE
v.
Donald Cleveland MIDYETTE.

No. 84.

Supreme Court of North Carolina.

May 3, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Charles L. Abernethy, Jr., New Bern, for defendant appellant.

LAKE, Justice.

In his presentation of these appeals, the defendant has disregarded the rules of this Court in respects too numerous to mention. We have, nevertheless, considered each of his assignments of error and his contentions in his brief and oral argument.

The indictment in Craven County Case No. 7534 alleges that the offenses therein charged were committed in that county. It was, therefore, the proper venue for the trial thereof. G.S. § 15-134. The defendant contends in his brief that his trial and conviction in Craven County, following his trial and conviction in Pamlico County, was a violation of his constitutional right not to be put twice in jeopardy for the same offense. It is elementary that a continuous series of acts by a defendant, all occurring on the same date and as parts of one entire plan of action, may constitute two or more separate criminal offenses. State v. Overman, 269 N.C. 453, 153 S.E.2d 44. These may occur in different counties and the defendant may be tried for each in the county where it was committed. See State v. Bruce, 268 N.C. 174, 150 S.E.2d 216.

As to the Pamlico County judgment, the defendant makes 34 assignments of error, but the entire record contains only four exceptions, two with reference to the admission of evidence, which was competent, and two to the denial of the defendant's motions for judgment of nonsuit.

As to the contention in the defendant's brief that the trial judge should have continued the trial of the Pamlico County cases and ordered a psychiatric examination of the defendant, it is sufficient to note that there was no such request by the defendant and no evidence to show that, at the time of his trial, he lacked sufficient mental capacity to plead to the indictment or to stand trial on the charges therein. The record does not show a plea of insanity as a defense or any evidence to support such a plea. He was represented by counsel. The fact that, four years prior to the offense with which he is charged, the defendant had been a patient in a mental hospital does not require the court to order a psychiatric examination in the absence of a request therefor or of any plea of insanity.

The assignments of error relating to the court's charge in the Pamlico cases are not brought forward in the brief and supported therein by any citation of authority or argument. They are, therefore, deemed abandoned by the defendant. Rule 28, Rules of Practice in the Supreme Court. In this he was well advised for these assignments of error are without merit.

The defendant was convicted and sentenced in Pamlico County Case No. 483 for the crime of assault with a deadly weapon upon W. I. Robertson, on 25 June 1966, by shooting him with a .22 caliber pistol. He could not thereafter be lawfully indicted, convicted and sentenced a second time for that offense, or for any other offense of which it, in its entirety, is an essential element. State v. Birckhead, 256 N.C. 494, 497, 124 S.E.2d 838, 6 A.L.R.3rd 888.

By the allegations it elects to make in an indictment, the State may make one offense an essential element of another, though it is not inherently so, as where an indictment for murder charges that the murder was committed in the perpetration of a robbery. In such case, a showing that the defendant has been previously convicted, or acquitted, of the robbery so charged will bar his prosecution under the murder indictment. State v. Bell, 205 N.C. 225, 171 S.E. 50. In State v. Overman, supra, we said:

"Where * * * the prosecution, under the second indictment, proceeds upon the theory that the offense charged therein was committed by means of another offense for which the defendant has previously been put in jeopardy, as where an indictment for murder charges that the murder was committed in the commission of another felony, for which the defendant has been previously tried and acquitted, the State has made the first alleged offense an element of the second and the defense of former jeopardy bars the subsequent prosecution." (Emphasis added.)

Conviction upon the former charge would, of course, lead to the same result.

In the present instance, the State has, by the allegations in the indictment in Pamlico County Case No. 484, made the identical assault for which the defendant was convicted in Case No. 483, an element of the offense, resistance of a public officer, charged in the second indictment. It has alleged this same assault was the means by which the officer was resisted. Under this indictment, the State could not convict the defendant of resistance of a public officer in the performance of his duty without proving the defendant guilty of the exact offense for which he has been convicted and sentenced in Case No. 483, the shooting of W. I. Robertson with bullets from a .22 caliber pistol on 25 June 1966.

What the State cannot do by separate indictments returned successively and tried successively, it cannot do by separate indictments returned simultaneously and consolidated for simultaneous trial.

The defendant has not raised this question. However, the error in Pamlico Case No. 484 appears on the face of the record proper and, on our own motion, we arrest the judgment in that case.

There is no merit in any of the defendant's exceptions, assignments of error or contentions with respect to Pamlico County Case No. 483 and no error in the judgment with respect to that case.

There is likewise no error in the judgment of the Superior Court of Craven County in its Case No. 7534.

Craven County Case No. 7534—no error.

Pamlico County Case No. 483—no error.

Pamlico County Case No. 484—judgment arrested.