#### STATE v. CLAUDE CLEMMONS.

(Filed 31 October, 1934.)

Criminal Law F d — Where evidence as to defendant’s actions is the same on two prosecutions for different offenses, his plea of former acquittal in the second action should he submitted to the jury.

Defendant was tried for arson and acquitted. Thereafter he was in-dieted for murder. In the prosecution for murder it appeared that the deceased was fatally burned in the fire which was the basis of the former prosecution, and that the evidence as to defendant’s actions in *277both prosecutions was tbe same: *Held,,*in the prosecution for murder it was error for tbe court to withhold from the consideration of the jury-defendant’s plea of former acquittal.

Appeal by defendant from *Daniels, J.,*at April Term, 1934, of Pitt.

Criminal prosecution, tried upon indictment charging tbe defendant with tbe murder of one Louise Eoberson.

Tbe defendant entered pleas of not guilty and of former jeopardy, or former acquittal.

Tbe facts with respect to tbe defendant’s plea of former jeopardy or former acquittal are not in dispute. On a prior day of tbe same term of court tbe defendant was tried upon an indictment charging him with feloniously setting fire to and burning a dwelling-house on tbe night of 24 January, 1934, tbe property of one M. H. Whichard, occupied at tbe time by Cora Eoberson and her three children, including her infant daughter, Louise Eoberson. Tbe jury returned a verdict of not guilty.

In tbe present case, tbe defendant is charged with tbe murder of Louise Eoberson on tbe night of 24 January, 1934. Tbe evidence offered on tbe bearing was tbe same as that adduced at tbe trial of tbe defendant on tbe charge of arson, except that tbe evidence of tbe fatal burning of Louise Eoberson was incidental on tbe charge of arson, whereas it constitutes an essential element in tbe indictment for murder. But tbe evidence as to what tbe defendant did was tbe same on both trials.

Upon this phase of tbe matter, tbe court instructed tbe jury as follows : “Gentlemen, tbe arson case in which tbe defendant was acquitted and tbe case you are now trying upon tbe charge of murder embrace two different offenses, and tbe fact tbe defendant was acquitted on tbe charge of arson has no bearing upon tbe guilt or innocence of tbe defendant in this indictment for murder which we are now trying.” Exception.

Verdict: Guilty of murder in tbe second degree.

Judgment: Imprisonment in tbe State’s prison at bard labor for a term of thirty years.

Defendant appeals, assigning errors.

*Attorney-General Brummitt and. Assistant Attorneys-Generad Beawell and Bruton for the State.*

*William J. Bundy for defendant.*

Stacy, C. J.,

after stating tbe case: Tbe case is controlled by tbe decision in *S. v. Bell,*205 N. C., 225, 171 S. E., 50. There was error in withholding from tbe jury’s consideration tbe defendant’s plea of former jeopardy or former acquittal. *S. v. King,*195 N. C., 621, 143 S. E., 140; *S. v. Ellsworth,*131 N. C., 773, 42 S. E., 699.

Tbe decision in *Bell’s case, supra,*evidently was not called to tbe attention of tbe learned judge who presided at tbe trial.

*278It is not according to tbe usual course and practice of tbe courts tbat one charged witb crime should be tried over and over to secure a conviction, even though in some instances the guilty may thus escape punishment, for it is better that the guilty few escape than the many innocent be annoyed and harassed by repeated prosecutions over the same matter. S. *v. Bell, supra,*and cases there cited.

New trial.