#### STATE v. ROBERT BELL.

(Filed 11 October, 1933.)

1. Homicide B a—

Eaebt party to a conspiracy to burglarize or rob a borne is guilty ol murder in tbe first degree if any one of tbe conspirators commits murder in an attempt to perpetrate tbe burglary or robbery. O. S., 4200.

2. Criminal Law F d — Court should hear plea of former jeopardy in prosecution for crime including crime for which prisoner was tried.

Where a defendant has been placed in jeopardy on an indictment charging conspiracy to burglarize a certain home and with burglariously robbing said home, and a judgment of not guilty entered, and thereafter the defendant is ifiaced on trial on an indictment charging conspiracy to commit murder and murder of the occupant of tbe home, who was killed by one of tbe conspirators in an attempt to commit the burglary or robbery, and it appears that both the attempted robbery and tbe murder arose out of tbe same transaction, and that tbe death of deceased occurred prior to the first indictment and that in so far as tbe defendant is concerned tbe same facts necessary to a conviction on tbe second indictment would have necessarily convicted him on tbe first, tbe defendant’s plea of former jeopardy entered in tbe trial of tbe second indictment should have been beard by the court, tbe burden of proof on the plea being upon defendant.

3. Criminal Law F b — Time from which jeopardy attaches.

Jeopardy attaches to a defendant when be is placed on trial on a valid indictment before a court of competent jurisdiction after arraignment and plea and after tbe jury has been empaneled for tbe trial, and in this case the record, though indefinite, is held to sufficiently show that the defendant had been placed in jeopardy.

4. Criminal Law F f—

Tbe burden of proof on a plea of former jeopardy is on defendant.

Appeal by defendant, Robert Bell, from *Clement, J.,*at April Term, 1933,. of MacoN.

Criminal prosecution tried upon indictment charging tbe defendants, in one count, with conspiracy to murder George Dryman, and, in a second count, witli the murder of tbe said George Dryman. Tbe defendant, Robert Bell, entered pleas of not guilty and former jeopardy.

Tbe deceased was a farmer, eigbty-four years of age, living in Macon County witb bis three maiden daughters. It was known that be kept a sum of money, which later proved to be about $2,300, in a trunk in bis bouse. Tbe defendants conceived tbe idea of robbing tbe old man of his money, so on the night of 23 - January, 1933, they first went to tbe home of Ernest Stanley and there masked themselves. They then got in Robert Bell’s car and were driven to a point near the Dryman home. Here, the other defendants left the ear with tbe understanding that *226Robert Bell should drive down the Georgia road and wait there for his confederates and pick them up after they had accomplished the robbery.

In attempting to perpetrate the robbery, one of the conspirators struck George Dryman over the head with a board, inflicting injuries from which he died about three weeks later. They did not get the money.

At the April Term, 1933, Macon Superior Court, which was a two-weeks term, it seems that the solicitor sent two bills before the grand jury, each containing two counts.

In the first bill, J. R. Bell, Ernest Stamey, Robert Bell, Louise Stamey, Clyde Woods and Mell Holden were charged (1) with conspiring to burglarize the home of George Dryman, and (2) with bur-glariously robbing said home.

It is alleged that some of the defendants, including the defendant, Robert Bell, were tried upon this indictment during the first week of the term and that “at the close of the evidence, the solicitor for the State took a judgment of not guilty as to the defendant, Robert Bell.” The record is silent as to what the verdict was as to the other defendants then on trial.

In the second bill sent before the grand jury, J. R. Bell, Robert Bell, Ernest Stamey, Clyde Woods and Mell Holden were charged (1) with the conspiracy to murder George Dryman, and (2) with the murder of the said George Dryman.

The record states that Ernest Stamey, Clyde Woods and Robert Bell were tried during the second week of the term upon this bill. J. R. Bell and Mell Holden were not put on trial for the reason that J. R. Bell had not been taken and Mell Holden was dead.

Upon the call of the case, the defendant, Robert Bell, entered a plea of former jeopardy, and offered to show that at the same term of court he had been tried and acquitted on the first bill above mentioned. The court ruled that his plea was not good and excluded the evidence. Exception.

The three defendants then on trial were convicted of murder in the second degree and from the judgment pronounced thereon of “imprisonment in the State’s prison of not less than 25 nor more than 30 years,” the defendant, Robert Bell, appeals, assigning errors.

*Attorney-General Brummitt and Assistant Attorney-General Seaiuell for the Stale.*

*Edwards & Lealherwood for defendant.*

Stact, C. J.

The case was tried upon the theory that if the defendants conspired to burglarize or to rob the home, of George Dryman and a murder were committed by any one of the conspirators in the attempted perpetration of the burglary or robbery, each and all of the defendants *227would be guilty of tbe murder. This is a correct proposition of law. *S. v. Donnell,*202 N. C., 782, 164 S. E., 352; *S. v. Miller,*197 N. C., 445, 149 S. E., 590. It is provided by C. S., 4200 that a murder “which shall be committed in the perpetration or attempt to perpetrate any . . . robbery, burglary or other felony, shall be deemed to be murder in the first degree.”

The evidence discloses that the conspiracy was to rob, and not to murder, George Dryman; that the homicide was committed in the attempted perpetration of the robbery; and the defendant, Eobert Bell, offered to show, under his plea of former jeopardy, that he had theretofore been tried and acquitted on the charge of a conspiracy to rob the deceased.

It is clear that the attempted robbery and the homicide grew out of the same transaction, and so far as Eobert Bell is concerned, the facts required to convict him on the second indictment would necessarily have convicted him on the first. *S. v. Freeman,*162 N. C., 594, 77 S. E., 780; *S. v. Hankins,*136 N. C., 621, 48 S. E., 593; *S. v. Lawson,*123 N. C., 740, 31 S. E., 667; *S. v. Gross and White,*101 N. C., 770, 7 S. E., 715; *S. v. Nash,*86 N. C., 650.

It is true, there is a difference between a conspiracy to burglarize a house with intent to commit robbery therein, and a conspiracy to burglarize it with intent to commit murder *(S. v. Allen,*186 N. C., 302, 119 S. E., 504), but here the murder was incidental to the attempted robbery, as all the evidence shows, and upon this theory the case has been, tried.

There was but one act, one intent and one volition, so far as Eobert Bell is concerned. 8 R. C. L., 144. He only furnished the conveyance, and remained a distance from the scene of the crime, nevertheless, he was one of the conspirators. *S. v. Whitehurst,*202 N. C., 631, 163 S. E., 683. It will be observed the death of the deceased did not intervene between the first and second indictments. 8 R. C. L., 148.

In a case practically on all-fours with the one at bar, *S. v. Mowser,*92 N. J. L., 474, 106 Atl., 416, 4 A. L. R., 695, the New Jersey Court of Errors and Appeals held that where robbery is by statute made a constituent element of murder in the first degree when death ensues in the perpetration of the robbery, a conviction of robbery will be a bar to a prosecution for a murder arising out of the same transaction:

In discussing the principles determinative of the question presented, the Court said:

> “The principle to be extracted from well-considered cases is that by the term, ‘same offense,’ is not only meant the same offense as an entity and designated as such by legal name, but also any integral part of such offense which may subject an offender to indictment and punishment. *228*Reg. ex rel. Thompson v. Walker,*2 Moody & R., 457; *Reg. v. Stanton,*5 Cox, C. C., 324.

> “When such integral part of tbe principal offense is not a distinct affair, but grows out of tbe same transaction, tben an acquittal or conviction of an offender for tbe lesser offense will bar a prosecution for tbe greater.

> “To adopt any other view would tend to destroy tbe efficacy of tbe doctrine governing second jeopardy wbicb is embedded in our organic law as a safeguard to tbe liberties of tbe citizens.

> “In discussing tbis interesting topic, Mr. Bisbop, in Yol. 1, 5tb ed., paragraph 1057, of bis learned treatise on Criminal Law, says: Hut where tbe conviction or acquittal is upon an indictment covering no more than one of tbe smaller crimes, included, as before mentioned, within a larger, tbe question arises, whether tbis will bar an indictment embracing one of tbe larger. If it will not bar, tben the prosecutor may begin with tbe smallest, where there are several crimes included with one another, and obtain successive convictions ending with tbe largest; while, if be bad begun with tbe largest, be must there stop, a conclusion repugnant to good sense. Besides, as tbe larger includes tbe smaller, it is impossible a defendant should be convicted of tbe larger without being convicted of tbe smaller; and thus, if be has been already found guilty of tbe smaller, be is, when on trial for tbe larger, in jeopardy a second time for tbe same, namely, tbe smaller offense. Some apparent authority, therefore, English and American, that a jeopardy fon tbe less is no bar to an indictment for tbe greater, must be regarded as unsound in principle; while tbe doctrine which bolds it to be a bar rests firmly on adjudication also.’ ”

Tbe point is made that tbe record is too indefinite to show tbe result of tbe first trial. Tbe record is indefinite, but jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in tbe case. *S. v. Ellis,*200 N. C., 77, 156 S. E., 157; 16 C. J. 236-237.

It is also observed tbe date of tbe alleged offenses is laid in tbe indictments as 17 April, 1933, tbe date on wbicb tbe term of court convened. Tbe evidence shows that tbe attempted robbery took place on 23 January, 1933, and tbe deceased died 12 February following.

Tbe defendant has tbe burden of proof *(S. v. White,*146 N. C., 608, 60 S. E., 505) on bis plea in bar, and be may not be able to make it good, but tbe court erred in declining to bear him on bis plea of former jeopardy. *S. v. King,*195 N. C., 621, 143 S. E., 140; *S. v. Ellsworth,*131 N. C., 773, 42 S. E., 699.

New trial.