State v. Johnson

187 S.E.2d 98 (1972) 280 N.C. 700

STATE of North Carolina
v.
Will JOHNSON, Jr.

No. 83.

Supreme Court of North Carolina.

March 15, 1972.

T. O. Stennett, Charlotte, for defendant appellant.

Robert Morgan, Atty. Gen., T. Buie Costen, Asst. Atty. Gen., Rafford E. Jones, Associate Atty. Gen., for the State of North Carolina.

HUSKINS, Justice:

The sole question presented by this appeal is whether the trial court erred in consolidating the two armed robbery cases for trial. Defendant contends that although he is charged with crimes of the same class, the crimes charged are not "so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the other," citing State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931) and G.S. § 15-152.

In North Carolina the consolidation of criminal charges is a discretionary matter, but the court must exercise its discretion within the framework of G.S. § 15-152 which reads in pertinent part as follows: "When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined, instead of several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court will order them to be consolidated.. . ." An elementary phrase-by-phrase analysis of the statute reveals a variety of circumstances under which consolidation of charges against a single defendant may be ordered: (1) where several charges against the accused arise from the same act or transaction; (2) where several charges against the accused for two or more acts or transactions are connected together (such charges need not be of the same class of crimes and offenses); and (3) where several charges for two or more transactions are of the same class of crimes or offenses which may be properly joined (such transactions need not be connected together).

It would seem that defendant has simply misread the statute. He confuses categories (2) and (3), maintaining that when there are several charges against any person for two or more transactions of the same class the transactions must also be, in some way, "connected together" in order to be properly consolidated. Defendant's conclusion in that respect is not supported by the express language of the statute.

Here the indictments are for crimes of the same class—in fact, for identical offenses of armed robbery. Their consolidation is permissible in the discretion of the court unless the circumstances are such that they may not be "properly joined," viz: unless the offenses are so separate in time or place and so distinct in circumstances as to render a consolidation unjust and prejudicial.

In State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962), defendant was charged in four separate indictments with receiving stolen goods valued at more than $100, knowing them to have been stolen. Two of the offenses occurred on 1 December 1959, one on 17 October 1960, and one on 7 December 1960. The goods received belonged to four different persons. The four cases were consolidated for trial over objection. Held: "Where a defendant is indicted in separate bills ``for two or more transactions of the same class of crimes or offenses' the court may in its discretion consolidate the indictments for trial. In exercising discretion the presiding judge should consider whether the offenses alleged are so separate in time or place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant." Accord, State v. Waters, 208 N.C. 769, 182 S.E. 483 (1935); State v. Harvell, 199 N.C. 599, 155 S.E. 257 (1930); State v. Charles, 195 N.C. 868, 142 S.E. 486 (1928).

Defendant relies on the following language in State v. Combs, supra: "The court is expressly authorized by statute in this State to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others." The same argument was advanced by defendant in State v. White, supra, and the court observed that the quoted language from Combs must be interpreted in light of the facts in that case. There, two defendants were involved, the two offenses were closely related in time, and the clothing stolen from one building was found in the automobile stolen from the other. On that state of facts evidence at the trial of one of the indictments would have been competent and admissible at the trial of the other and apparently gave rise to the use of the language defendant relies on.

There is nothing in the language of G.S. § 15-152 to support the contention that two or more indictments in which a defendant is charged with crimes of the same class may not be consolidated for trial unless "evidence at the trial of one of the indictments will be competent and admissible at the trial of the others." We prefer to let the statute speak for itself. The question is not whether the evidence at the trial of one case would be competent and admissible at the trial of the other. The question is whether the offenses are so separate in time or place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant. State v. White, supra, and cases therein cited.

Defendant has failed to show any impropriety in the consolidation for trial of these two indictments for armed robbery. The crimes are identical and occurred on the same night. In the first robbery defendant used a sawed-off rifle but took, in addition to money, a .22 caliber pistol from the victim John Nowell. In the second robbery defendant pointed a .22 caliber pistol at his victim Joseph Gammeter and took not only money but another.22 caliber pistol from him. When defendant was apprehended the officers found a sawed-off rifle and the .22 caliber pistol taken from Joseph Gammeter at the Li'l General Store. Thus it may be seen that these armed robbery charges against defendant are not so separate in time or place and not so distinct in circumstances as to render a consolidation unjust and prejudicial. Here, in fact, much of the evidence at the trial of one charge would be competent and admissible at the trial of the other.

Applying the foregoing principles to the circumstances revealed by the record, we hold the consolidation was proper. No abuse of discretion appears, and neither prejudice nor injustice by reason of the consolidation has been shown.

No error.