State v. . Rice

163 S.E. 112, 202 N.C. 411, 1932 N.C. LEXIS 523

• Court: Supreme Court of North Carolina
• Decided: March 23, 1932
• Status: Published

Opinion

Brogden, J.

The defendant was charged with a capital felony. When the case was called for trial the solicitor announced that he would not press the charge for capital felony but would ask for a verdict for murder in the second degree or manslaughter. The defendant pleaded not guilty and a jury was sworn and empaneled. The State began to offer testimony and introduced a witness named Delbert Shelton, who proceeded to testify as to tbe events resulting in tbe killing of McKinley Sbelton by tbe defendant. After tbe first witness for tbe State bad practically completed bis direct examination tbe trial judge, of bis own motion, brought into- tbe case by consolidation another indictment charging tbe defendant with assault with a deadly weapon with intent to kill, committed by tbe defendant against Delbert Sbelton, tbe State’s witness. Hence tbe question of law arises: Did tbe trial judge have power to consolidate tbe indictments under tbe circumstances?

C. S., 4622, regulates tbe consolidation of criminal actions. This statute has been construed in many decisions of this Court. In S. v. Combs, 200 N. C., 671, 158 S. E., 252, it is written: “Tbe court is expressly authorized by statute in this State to order tbe consolidation for trial of two or more indictments in which tbe defendant or defendants are charged with crimes of tbe same class, which are so connected in time or place as that evidence at tbe trial of one of tbe indictments will be competent and admissible at tbe trial of tbe others.” S. v. Lewis, 185 N. C., 640, 116 S. E., 259; S. v. Smith, 201 N. C., 494; S. v. Malpass, 189 N. C., 349, 127 S. E., 248. Moreover, it has been generally held that if separate offenses are charged in tbe same warrant or indictment, they are to be considered as separate counts. S. v. Jarrett, 189 N. C., 516, 127 S. E., 590.

Without debating tbe question as to whether tbe indictments could have properly been consolidated at tbe beginning of tbe trial, it is obvious that tbe consolidation thereof, pending tbe taking of testimony on tbe indictment for murder, was prejudicial to tbe defendant. He was afforded no opportunity to pass upon tbe impartiality of tbe jury upon tbe assault charge, nor bad be been permitted to plead to such charge. These principles are fundamental and tbe failure to apply them in tbe case at bar entitles tbe defendant to a new trial. S. v. Jackson, 82 N. C., 565; S. v. Cunningham, 94 N. C., 824.

New trial.