State v. . Beal

Ajdaíus, J. At tbe March Term, 1930, of tbe Superior Court of Cherokee County tbe defendants were indicted for storebreaking, larceny, and receiving stolen goods knowing tbem to have been stolen. They were put on trial and tbe jury returned tbe following verdict: “All of tbe defendants guilty on tbe third count of having these goods in their possession, knowing tbem to have been stolen. Not guilty as to breaking and entering and for larceny.” Tbe defendants moved to set aside tbe verdict and to arrest tbe judgment. Their motions were overruled; they excepted; and from tbe judgment on tbe verdict they appealed. Tbis Court awarded a venire de novo on the authority of S. v. Barbee, 197 N. C.,. 248, in which it was held tbat a finding by tbe jury tbat tbe defendants were guilty of having tbe property in their possession knowing it to have been stolen was not responsive to the indictment and was not sufficient to support a judgment. S. v. Beal, 200 N. C., 90. At March Term, 1931, of tbe Superior Court tbe grand jury returned another bill against tbe defendants, which, according to tbe *270 finding of the trial court, states “tbe same cause that was tried at the March Term of 1930.” When the present case was called in the Superior Court the defendants moved that the court proceed on the third count in the bill found at March Term, 1930, and that an issue 'of former acquittal be. submitted on the first and second counts. Both motions were denied. Whether this ruling is correct depends upon the legal effect of the decision of this Court awarding a venire de novo. We need not point out the technical distinction between a venire de novo and a new trial, for while they differ in material respects they agree in this, that both award a new trial. The contention that a new trial extends to the whole case is deduced from the principle that the defendant in a criminal action cannot claim protection under a verdict which at his instance is set aside, and that the granting of a new trial left nothing to support the verdict but placed the parties in the position they would have occupied had there been no trial. In the brief which they filed in S. v. Beal, supra, the defendants insisted that “they should have a new trial,” and a new trial was granted them. At the second trial they claimed exemption from prosecution on the first and second counts, on the ground that on these they had previously been acquitted. The defendants cite a number of authorities from other states in support of their position, and it must be admitted that in other jurisdictions there is marked diversity of opinion on the question. -But this. Court is committed to the opposing view, and we cannot now accept the-proposed doctrine without overruling our own decisions. In S. v. Stanton, 23 N. C., 424, in an opinion written by Ruffin, 0. J.y the Court established the principle that where a defendant who is acquitted upon one count in an indictment and convicted upon another-appeals and a venire de novo is awarded there must be a retrial upon the whole case. There in the first count the indictment charged the defendant with forgery and in the second with uttering and publishing, the paper knowing it to have been forged. The .Court granted a new trial and said, “As this is done at the instance of the prisoner, the-former verdict must be set aside entirely, and a venire de nova awarded to retry the whole case.” The decision was made in 1841 and on the point in question it has been cited with approval in S. v. Grady, 83 N. C., 643; S. v. Craine, 120 N. C., 601; S. v. Freeman, 122 N. C., 1012; S. v. Gentry, 125 N. C., 733; S. v. Matthews, 142 N. C., 621; and in the concurring opinion in S. v. Davis, 175 N. C., 723. The sentiment expressed by Smith, G. J., in S. v. Grady, supra, may therefore be deemed pertinent: “In this State it has been ruled, Chief Justice Ruffin delivering the opinion of himself and his able associates, that when, at the instance of a convicted *271 prisoner charged in several counts in an indictment, on some of which he is found not guilty, a new trial is awarded, the entire verdict is set aside and he is put on trial as before upon the entire bill. S. v. Stanton, 23 N. C., 424. ¥e should be reluctant to disturb the doctrine laid down upon such high authority, and so long since acquiesced in, except upon the most cogent conviction of its error, notwithstanding the weight of modern authority to the contrary.” The foregoing cases are applicable if the two bills are identical; but while the transactions referred to are the same the second and third counts in the second bill are not identical with, but an enlargement upon, the corresponding counts in the first. The difference consists in the number, description, and value of the articles charged to have been stolen or feloniously received. If the bill returned in March, 1931, is in effect a new bill, the defendants were properly tried upon it pursuant to the practice approved in S. v. Lee, 114 N. C., 844 and other cases. So, whether the counts in the two bills are essentially different or practically identical, the first four exceptions must be overruled. It is suggested by the appellants that some of the cases approving S. v. Stanton, supra, merely hold that in an indictment for murder a new trial on a verdict for manslaughter reopens the whole case on the principle that manslaughter is a lesser degree of. the offense charged; but no decision of this Court has reversed or modified, the doctrine laid down in the Stanton case, which deals with the exact question under consideration. These are the principal exceptions. There are others relating to the admission of evidence but they are without merit. It was competent for the ¡State to show where the defendants were and the circumstances under which they were arrested, the relation they sustained to one another and the articles that were found in their possession, not excluding “a small quantity of liquor.” Testimony concerning the admission of Mary Best was restricted to the question of her guilt, and if it did- not tend to implicate her it was certainly not prejudicial to her codefend-ants. His Honor was careful to instruct the jury with great clearness that the testimony as to her admission should not be considered as against the others. In the charge there is no prohibited expression of opinion and no. reversible error with respect to the possession' of the goods. The motion for nonsuit was properly refused. Upon a careful inspection of the record wé find No error.