State v. Partlow

157 S.E.2d 688 (1967)

272 N.C. 60

STATE of North Carolina v. James PARTLOW.

No. 271.

Supreme Court of North Carolina.

November 22, 1967.

*690 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

E. Glenn Scott, Jr., Charlotte, for defendant appellant.

*691 BRANCH, Justice.

Defendant's conviction of accessory before the fact of armed robbery was based upon the following bill of indictment:

"The Jurors for the State upon their oath present, That James Partlow, late of the County of Mecklenburg, on the 3rd day of December, in the year of our Lord one thousand and nine hundred and sixty-six, with force and arms, at and in the County aforesaid, unlawfully, wilfully and feloniously, did be and become an accessory before the fact of armed robbery committed by one Willie Moore and one Don Lands, the same being the principal felons, in that he, James Partlow, counseled, incited, induced, procured and encouraged the principal felons to commit the aforesaid felony of armed robbery, against the form of the statute in such case made and provided and against the peace and dignity of the State."

The proper methods to raise the question of the sufficiency of a bill of indictment are by motion to quash or motion in arrest of judgment. However, if the offense is not sufficiently charged in the indictment, this Court, ex mero motu, will arrest the judgment. State v. Walker, 249 N. C. 35, 105 S.E.2d 101.

In the case of State v. Greer, 238 N.C. 325, 77 S.E.2d 917, the Court considered the validity of a bill of indictment, and Parker, J., (now C. J.) stated:

"The authorities are in unison, that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case. State v. Cole, 202 N.C. 592, 163 S.E. 594; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Miller, 231 N.C. 419, 57 S.E.2d 392; State v Gibbs, 234 N.C. 259, 66 S.E.2d 883."

In considering the validity of this indictment we recognize that by statute (G. S. § 14-5) the facts which formerly had been called "accessory before the fact" are made a substantive felony and it is not necessary to first convict principals in order to convict an accessory to a crime. State v. Jones, 101 N.C. 719, 8 S.E. 147, 148. However, it will be of assistance to examine the indictments in certain cases of robbery in order to decide whether this indictment is valid.

The defendants were charged with robbery with firearms in the case of State v. Mull, 224 N.C. 574, 31 S.E.2d 764. The bill of indictment charged the property taken to be "two dollars in money." The court charged, "I instruct you that * * * gas tickets or coupons are recognized as personal property, and that the taking of them is a breach of the statute * * *." Defendants contended that this instruction erroneously enlarged upon and departed from the bill of indictment. Holding that there was no error, this Court stated:

"Initially, it should be observed that the bill charges robbery from the person by the use or threatened use of firearms of two dollars in money the property of Cleveland Whisenant. The gist of the offense, as thus alleged, is the accomplishment of the robbery by the use or threatened use of firearms. * * * Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense. * * * `In such case it is not necessary or material to describe accurately or prove the particular identify or value of the property, further than to show it was the property of the person assaulted or in his care, and had a value.'" (Emphasis added)

*692 In the case of State v. Guffey, 265 N.C. 331, 144 S.E.2d 14, the Court considered the appellant's contention that the indictment for common law robbery was fatally defective in that it did not describe the property taken. Holding the indictment defective, the Court said:

"We have said in a number of cases that in an indictment for robbery the kind and value of the property taken is not materialthe gist of the offense is not the taking, but a taking by force or putting in fear. State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34; State v. Brown, 113 N.C. 645, 18 S.E. 51; State v. Burke, 73 N.C. 83. See also State v. Mull, 224 N.C. 574, 31 S.E.2d 764. However, in these cases the objection was not that there was no description but that the description was insufficient; the indictments described the property in general terms, such as `money'. "In our opinion an indictment for robbery must contain a description of the property sufficient, at least, to show that such property is the subject of robbery. To constitute the offense of robbery the property taken must be such as is the subject of larceny. State v. Trexler, 4 N.C. 188; 46 Am.Jur., Robbery, Sec. 8, p. 142."

Former jeopardy, being based on the fundamental legal principle that a person cannot be tried twice for the same offense, is a good plea. State v. Mansfield, 207 N.C. 233, 176 S.E. 761; N.C.Const., Art. I, Sec. 17. Further, a plea of former jeopardy must be grounded on the same offense both in law and fact. State v. Davis, 223 N.C. 54, 25 S.E.2d 164.

The bill of indictment in the instant case charges the defendant with accessory before the fact of armed robbery in the general words of the statute, without any factual averments as to the identify of the victim, the property taken, or as to the manner or method in which defendant "counseled, incited, induced, procured and encouraged the principal felons." It is apparent that if the principal felons had committed more than one armed robbery in Mecklenburg County on 3 December 1966, defendant would be unable upon a subsequent prosecution to show that the latter prosecution was for the same offense as charged in the instant bill of indictment.

In the case of State v. Banks, 247 N.C. 745, 102 S.E.2d 245, the Court stated:

"`* * * while it is a general rule prevailing in this State that an indictment for a statutory offense is sufficient if the offense be charged in the words of the statute, State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143, the rule is inapplicable where the words of the statute do not in themselves inform the accused of the specific offense of which he is accused so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense, as where the statute characterizes the offense in mere general or generic terms, or does not sufficiently define the crime or set forth all its essential elements. In such situation the statutory words must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged.' See also State v. Helms, [247 N.C. 740], 102 S.E.2d 241."

Since the bill of indictment which attempts to charge accessory before the fact of armed robbery does not sufficiently particularize and identify the crime charged so as to protect the defendant from subsequent prosecution for the same offense, we hold that the bill of indictment is fatally defective, and the judgment entered thereon is arrested.

However, defendant is not entitled to discharge. The State may put him on trial under a proper bill of indictment if it so elects.

The only assignment of error brought forward and argued in defendant's brief is *693 that defendant did not receive a fair and impartial trial as guaranteed by Article I, Sec. 17, of the North Carolina Constitution, in that defendant was convicted upon the testimony of alleged accomplices who had pleaded guilty and whose sentences were withheld until after defendant's trial.

The court follows the rule that the unsupported testimony of an accomplice is sufficient to support a conviction if it satisfies a jury of defendant's guilt beyond a reasonable doubt. State v. Terrell, 256 N.C. 232, 123 S.E.2d 469; State v. Saunders, 245 N.C. 338, 95 S.E.2d 876; State v. Tilley, 239 N.C. 245, 79 S.E.2d 473.

The fact that the witnesses Land and Moore had pleaded guilty was clearly brought to the attention of the jury. There is no evidence that any threats or promises of reward were made to the witnesses. The jury, after hearing all the evidence, returned verdicts of guilty as charged.

Since the presumption is in favor of the regularity of the trial below, the burden is on the defendant to show error that affected the result adversely to him. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79.

It is a settled principle of law in this State that until a term of court expires the judgment of the court remains in fieri and the judge may modify, change, alter, amend, or substitute another judgment for a prior judgment entered during that term. State v. Gross, 230 N.C. 734, 55 S.E.2d 517; State v. Godwin, 210 N.C. 447, 187 S.E. 560.

Defendant's contention that his constitutional rights were impaired because the judge withheld sentencing of his alleged accomplices until after they testified at his trial is an obvious fallacy. The judge has full power in the exercise of his discretion not only to change and modify the judgment of the court entered during the term, but to hear all of the evidence in open court, both as to the facts in the case, the character and conduct of the parties, including their demeanor and conduct on the witness stand if they elect to testify, before imposing sentence on any of the defendants. This power is necessary in order for the judge to wisely administer appropriate justice.

Upon the arrest of judgment as to the charge of accessory before the fact of armed robbery, the sentence imposed on the charge of accessory after the fact of armed robbery becomes indefinite, since it originally was to commence at the expiration of the sentence imposed for accessory before the fact of armed robbery. The case as to accessory after the fact of armed robbery is remanded to the Superior Court of Mecklenburg County to the end that proper judgment may be entered for modification as to the time when the sentence shall begin.

As to the charge of accessory before the fact of armed robbery: Judgment Arrested.

As to the charge of accessory after the fact of armed robbery: Error and remanded for modification of sentence.