State v. Truesdale

186 S.E.2d 604 (1972)

13 N.C. App. 622

STATE of North Carolina v. Donald TRUESDALE and Gary A. Garrett.

No. 7221SC152.

Court of Appeals of North Carolina.

February 23, 1972.

*605 Atty. Gen. Robert Morgan by Associate Atty. Gen. Ronald M. Price for the State.

Annie Brown Kennedy, Winston-Salem, for defendant appellants.

MORRIS, Judge.

Appellants were tried in district court on the warrants, were found guilty and appealed to the superior court. From the record it appears that the State inadvertently sent bills of indictment to the grand jury but announced in open court "that the State does not propose to proceed under the bill of indictment, but rather under the warrant on which the defendant was tried in the District Court of this county . . ." Appellants assign as error the denial of a motion to quash the bills of indictment, alleging that their mere existence puts them in jeopardy twice for the same offense. A plea of former jeopardy is not a plea to the indictment but is a plea in bar to the prosecution which poses an inquiry into what action the court has taken on a former occasion. State v. Davis, 223 N.C. 54, 25 S.E.2d 164 (1943); 2 Strong, N.C. Index 2d, Criminal Law § 26, pp. 515-524. Double jeopardy would not attach until such time as defendant was placed on trial for the same offense a *606 second time. State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962). Therefore, no prejudice has been shown. This assignment of error is overruled.

Appellants also assign as error the superior court's denial of its motion to quash the warrants which charged them with receiving stolen property worth $142.70 "in violation of law G.S. § 14-71". The warrant sufficiently charged all the essential elements of the offense of receiving and adequately apprised the appellants of the offense with which they were charged.

Appellants' next assignment of error is directed to the court's allowing the State's motion to amend the warrants to read "property of James Cathey, Jr. and Robert M. Sauls, Trading as Man-Trap Wigs". Judge Parker has said in State v. Thompson, 2 N.C.App. 508, 163 S.E.2d 410 (1968), that:

"As a general proposition the superior court, on an appeal from an inferior court upon a conviction of a misdemeanor, has power to allow an amendment to the warrant, provided the charge as amended does not change the offense with which defendant was originally charged. State v. Fenner, 263 N.C. 694, 140 S.E.2d 349; State v. Wilson, 227 N. C. 43, 40 S.E.2d 449." At p. 512, 163 S. E.2d at p. 412.

The original warrants, prior to amendment, charged all the essential elements of the offense of receiving stolen goods. State v. Brady, 237 N.C. 675, 75 S.E.2d 791 (1953). Ownership of the stolen property was stated in the warrants merely to negative any ownership in the accused. State v. Davis, 253 N.C. 224, 116 S.E.2d 381 (1960). We have previously held that it is not necessary that the warrant or indictment in a prosecution for receiving stolen goods state the names of those from whom the goods were stolen. State v. McClure, 13 N.C. App. 634, 186 S.E.2d 609 (1972); State v. Brady, supra. Amending the warrants later to describe ownership of the property in more detail in no way changed the offense with which the appellants were charged. This assignment of error is overruled.

Appellants excepted to the introduction of one photograph into evidence and objected to the use of another photograph. The photographs of the appellants were properly identified and entered into evidence for the purpose of illustrating the testimony of witnesses if the jury should find that they did illustrate the witness's testimony and the jury was so instructed. State v. McKissick, 271 N.C. 500, 157 S.E.2d 112 (1967); Smith v. Dean, 2 N.C.App. 553, 163 S.E.2d 551 (1968). This assignment of error is overruled.

Defendants' remaining assignments of error challenge the sufficiency of the evidence to go to the jury and support a verdict. When the evidence is considered in the light most favorable to the State, there is ample evidence to submit the case to the jury, nor was error committed when the trial tribunal refused to set the verdict aside and grant a new trial.

Defendants were well represented by counsel of their choice. In a trial free from prejudicial error, the jury refused to accept defendants' contentions.

No error.

CAMPBELL and PARKER, JJ., concur.