State v. Lewis, 9 N.C. 98, 2 Hawks 98 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 98, 2 Hawks 98

State v.Lewis, a slave,

From Pitt.

Two bills of indictment were found against a prisoner al the came 1 enn, the one for burglary and larceny, the otlier for a robbery, and both indictments charged the same felonious taking' of the same goodr. The prisoner was tried on the first indictment, and found guilty of the larceny, and not guilty of the burglary. Held, that he could not be put on his erial on the second indictment, because it would conflict with the principle (hat no one shall be twice put in peril for the same crime,’'" and on the refusal of the Attomoy-fienetal to pray judgment on 1lie conviction for larceny, the prisoner was allowed his clergy, and was dischavg. d.

At September teem, 1821, of Pitt Superior Court, two bills of indictment against the, ¡ risoucr wore, found by the Grand Jury — the. one for burg!ary and larceny, the, other for a robbery. The larceny in the one. bill, and the robbery in the other, vero for the same goods and ehíkíels» and there war; but ono taking. Ai; the same iv<in, Te prisoner ’.vas íbíiud guilty oí' the Treony, and >iot f.-riíSy of ího kuivv'ü'7 ; or; this oouvirtion, the At-iorsiev-iVnorri did tiol prav a.«’ juclgmeik, nor wtss a»y •y o arrnriA j si ml, at the Cree o" the prínme.As arraign-inení,, jf-i usotl'm was íjsyío by hr* ccjüü.á'Í that the prose ouüs'jv oidor i* should oleoí on winds indiciwent he would try Ck pfiüt'-icr. Al Nnrch tern;, ¡trtíy the prisotto:’ wsm brteykí to the bar, and ¡ha Aííos-ney-íkmeraJ direct» cd & ¡)í*L y va, to be entered on the iiscfetmenl wind; had been trkd vi the preceding ierra, bat the Court (Mr-wood, AiAy, preddayr;;) refused í« jnsruit the ml. pros. Tire ;h?;«!‘i;i'y-C;i.;u'c;;j ooiec to arraign the prison-oí* oji the ¡Aíík'tru-iií íbr roUnvy ; tS;3;j also wso refused by the Cwsrt sintk the fir'd: indirtiuent should be. disposed of, sind on the i-efussri of tíre Afiorney.-GeiisoraS to jvny judgment or; the Erst iitdictmen;, Use Court qnsdsed the indictment for robbery,, íkr Bídian of prisoner"» counsel. tii.-r ctwyj w;;b allowed lid»; on Ate eomiotios: for larceny. and, on the farther* reíd,nil of the Aliorney-Gesforal fa pray judgment,, tin' prisoner wag ordered to bo dis-chsspged j \ví»ñresi:i»];, In behalf of the Btaia. the prone-outing oSiee?* appealed to «Ab Court.

Hall, Judge.

It i» r<íI:H¡íteá, in this case, that. both !.ndii'ki’“nir’, are, for the same felonious h/hinp; of Vn<; mme [puds. Alie Fiefei’iilaiii is found guilty of a grand larceny. on that indioi.moni which ciiat-eyo a burglary and dcsitiuc;. ■*

The other indiotraeni is for a robbery j a robbery i» a larceuy. hut of a atore agrrjnsvried kind. The first i» a simple larceny. The other f; a com pound or mixed b¡r-ceny, because it includes in it the r,;>;yrs>vati<m of a felonious faking front 11; r p-rsj.;.

Now. suppose 1 iso IVfendatit should be tried, aud found gully on the second hidictineaf ? it must certainly follow. ¡beí be batí, been tried twice for 1 ho feloniously taking ef tho £U*.?a« aortls- it is true, if the first conviction is a bar to a trial on the second indictment, the prisoner would £o untried as to that which constitutes the diSerence between simple larceny and mixed and compound larceny, viz : a taking from the person. In such case, he would be convicted of a felonious taking, but not of a felonious taking from the person. Whereas, should he be tried and convicted on both indictments, it might be said he had been convicted twice of a felonious taking, and once of a felonious taking from the person, which I think would be at points with the principle, “ that no one should be twice put in peril for the same crime.” This principle, has such deep root in the criminal law, and is cherished by so many judicial decisions, that it is not deemed necessary to refer to any of them.

I, therefore, think the conviction on the. first indictment for burglary and larceny, a good plea to a trial on the second indictment for robbery. I also thin!-: that the record of these proceedings, and the, admissions of the Attorney-General were sufficient to authorise the Judge below to discharge the prisoner. And, in this opinion, the rest of

The Court concurred.