State v. Robinson

116 N.C. 1046

Opinion

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.