State v. Robinson, 116 N.C. 1046 (1895)

Feb. 1895 · Supreme Court of North Carolina

116 N.C. 1046

STATE v. JULIUS ROBINSON.

Indictment for Carrying Concealed Weapons — Former Conviction — Appeal by State.

1. A single act may be an offence against two statutes and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

2. An assault with, a deadly weapon is an entirely separate and distinct offence from that of “ carrying a concealed weapon,” the assault being a complete offence whether the weapon is carried secretly or openly.

3. A conviction of assault'with a deadly weapon will not sustain a plea of former conviction in a subsequent trial for carrying a concealed weapon.

4. Where the jury returns a special verdict on the facts and the Court enters a verdict thereon of not guilty, the State may appeal.

This was an INDICTMENT for carrying a concealed weapon, to-wit, a pistol, tried before Norwood, J., and a jury, at April Term, 1895, of BeuNSwioK Superior Court. The defendant pleaded not guilty and “former conviction.” The jury found the following special verdict: “ That on the first day of March, 1895, in the County of Brunswick, the defendant had and carried concealed about his person while off his own premises a certain pistol as charged in the indictjnent; that at April Term, 1895, of this Court the said defendant was tried and convicted upon an indictment for an assault and battery committed the 1st day of March, 1895, upon one John Billups with a certain deadly weapon, to-wit, the pistol before mentioned; that the time of carrying the concealed weapon as aforesaid was the same time at which the assault and battery upon Billups was committed and for which the defendant was convicted as aforesaid. If upon this state of facts the Court is of opinion that the defendant is guilty, then the jury find him guilty, otherwise not guilty.”

Upon the special verdict the Court adjudged the defendant not guilty and from a judgment discharging the prisoner, the State appealed.

The Attorney General, for the State.

No counsel, eont/ra.

ClakK, J.:

In State v. Stevens, 114 N. C., 873, it is said, “A single act may be an offence against .two statutes and if each statute requires proof of an additional fact, which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Accordingly it was there held that the same act of selling a single glass of liquor might be separately punished by the United States, by the State and by the City, if sold without a license from each. While the act is one the offences are different. State v. Yancey, 4 N. C., 133 (519); State v. Reid, 115 N. C., 741. Here, however, the acts are separate, “assaulting” and “carrying a concealed weapon.” The assault is an entirely separate and distinct offence from that of carrying a concealed weapon, and it does not alter the case that the assault was made with a weapon illegally concealed. The assault with a deadly weapon is a complete offence whether the weapon is carried concealed or openly. The offence of carrying a concealed weapon is complete, irrespective of the fact that an assault is or is not committed with -it. Therefore the conviction for an assault with deadly weapon will not sustain a plea of former conviction in a subsequent trial for carrying a concealed weapon. State v. Nash, 86 N. C., 650; State v. Morgan, 95 N. C., 641.

It was sufficient upon the special verdict for the Court ■to have judgment that the defendant was or was not guilty, but the entry upon such opinion of a verdict of not guilty worked no harm and did not prevent the appeal by the State. State v. Ewing, 108 N. C., 755; State v. Spray, 113 N. C., 686; State v. Gillikin, 114 N. C., 832.

Upon the facts found by the special verdict a judgment of guilty should have been entered. The case will be remanded that it may be so entered and sentence passed on the defendant in accordance therewith. State v. Cody, 111 N. C., 725. Reversed.