{ "id": 8572596, "name": "STATE OF NORTH CAROLINA v. MARVIN EDWARD BALLARD", "name_abbreviation": "State v. Ballard", "decision_date": "1972-02-09", "docket_number": "No. 56", "first_page": "479", "last_page": "490", "citations": [ { "type": "official", "cite": "280 N.C. 479" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "236 S.W. 985", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 8264061 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/sw/236/0985-01" ] }, { "cite": "468 S.W. 2d 422", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10150753 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/sw2d/468/0422-01" ] }, { "cite": "2 Am. St. Rep. 252", "category": "reporters:state", "reporter": "Am. St. Rep.", "year": 1887, "opinion_index": 0 }, { "cite": "34 N.W. 194", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1887, "opinion_index": 0 }, { "cite": "72 Iowa 432", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8649991 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/iowa/72/0432-01" ] }, { "cite": "183 S.W. 308", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "89 S.E. 2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "211 Ga. 863", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 260052 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ga/211/0863-01" ] }, { "cite": "419 P. 2d 569", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10586259 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/p2d/419/0569-01" ] }, { "cite": "159 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "528-29" } ], "opinion_index": 0 }, { "cite": "273 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574962 ], "year": 1968, "pin_cites": [ { "page": "212-13" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0208-01" ] }, { "cite": "146 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "266 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561718 ], "year": 1966, "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0584-01" ] }, { "cite": "29 S.E. 2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1944, "pin_cites": [ { "page": "37" }, { "page": "37" } ], "opinion_index": 0 }, { "cite": "224 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595081 ], "year": 1944, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0061-01" ] }, { "cite": "31 S.E. 2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "224 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610332 ], "year": 1944, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0574-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "846" } ], "opinion_index": 0 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "year": 1962, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "171 S.E. 50", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "205 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627771 ], "year": 1933, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc/205/0225-01" ] }, { "cite": "139 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "263 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569757 ], "year": 1965, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0283-01" ] }, { "cite": "395 U.S. 784", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771730 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0784-01" ] }, { "cite": "80 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "245" }, { "page": "245" } ], "opinion_index": 0 }, { "cite": "239 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627279 ], "year": 1954, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0446-01" ] }, { "cite": "176 S.E. 761", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1954, "opinion_index": 0 }, { "cite": "207 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624715 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/207/0233-01" ] }, { "cite": "64 S.E. 2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "233 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611849 ], "weight": 2, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0511-01" ] }, { "cite": "63 N.C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278175 ], "opinion_index": 0, "case_paths": [ "/nc/63/0529-01" ] } ], "analysis": { "cardinality": 982, "char_count": 25999, "ocr_confidence": 0.54, "pagerank": { "raw": 7.209747812601123e-07, "percentile": 0.9676477277246666 }, "sha256": "f11da670cc98a1547531c315c982d60b9f6b57ce07143841326a813bab69c41b", "simhash": "1:f78452504e6a362b", "word_count": 4404 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Lake, Branch and Huskins dissent." ], "parties": [ "STATE OF NORTH CAROLINA v. MARVIN EDWARD BALLARD" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\n\u201cIt is a fundamental and sacred principle of the common law, deeply imbedded in our criminal jurisprudence, that no person can be twice put in jeopardy of life or limb for the same offense. S. v. Prince, 63 N.C. 529, S. v. Hicks, 233 N.C. 511, 64 S.E. 2d 871. It was incorporated in the Bill of Rights of the Federal Constitution. (United States Constitution, Amendment V.) While the principle is not stated in express terms in the North Carolina Constitution, it has been regarded as an integral part of the \u2018law of the land\u2019 within the meaning of Art. I, sec. 17. S. v. Mansfield, 207 N.C. 233, 176 S.E. 761.\u201d State v. Crocker, 239 N.C. 446, 449, 80 S.E. 2d 243, 245 (1954).\nOverruling prior decisions, the Supreme Court of the United States held in Benton v. Maryland, 395 U.S. 784, 23 L.Ed. 2d 707, 89 S.Ct. 2056 (1969), that the double-jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. Hence, federal as well as state double-jeopardy standards1 control decision.\nBallard\u2019s plea of double jeopardy is based on his trial before Judge McKinnon at December 7, 1970 Criminal Session of Cumberland Superior Court on an indictment returned at the October 12, 1970 Criminal Session which charged that, on August 21, 1970, he \u201cunlawfully, wilfully and feloniously, having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: a .38 caliber pistol whereby the life of Kane Parsons was endangered and threatened, did then and there unlawfully, wil-fully, forcibly, violently and feloniously take, steal and carry away One Thousand, Five Hundred and One Dollars and Seventeen Cents ($1,501.17) in money, to wit: United States Currency and Coins of the value of One Thousand, Five Hundred and One Dollars and Seventeen Cents ($1,501.17) from the person of Kane Parsons property of the Great Atlantic and Pacific Tea Company, Incorporated, . . . . \u201d (Our italics.)\nAn \u201cAddendum to the Record\u201d provides the only information before us as to what occurred at the trial at December 7, 1970 Criminal Session. This discloses that, upon Ballard\u2019s plea of not guilty to the above quoted indictment, the jury was duly selected, sworn and empaneled; that Ballard made a motion to dismiss as in case of nonsuit at the end of the State\u2019s evidence and again at the end of all the evidence but assigned no ground and presented no argument in support of the motions; that each of Ballard\u2019s motions was overruled; that later the court allowed Ballard\u2019s motion to dismiss as in case of nonsuit and stated the reasons therefor as follows:\n\u201cAfter the argument and at the beginning of the charge, the court for the first time read the Bill of Indictment and determined that it alleged that Kane Parsons was endangered and threatened and further it alleged the taking and carrying away of money from the person of Kane Parsons. Upon examination of the Bill of Indictment, the court being of the opinion that there is a fatal variance between the allegation and the proof, it is ordered that the defendant\u2019s motion for judgment as of nonsuit be allowed, with leave to the State to proceed upon a correct charge and Bill of Indictment. The defendant is to be held in lieu of Bail in the amount of five thousand dollars ($5000.00) pending the drawing of a new charge.\u201d\nWhether correct or erroneous, the judgment of nonsuit had the force and effect of a verdict of \u201cnot guilty\u201d as to the armed robbery for which Ballard was then being tried, namely, the armed robbery charged in the indictment returned at the October 12, 1970 Criminal Session. G.S. 15-173; State v. Stinson, 263 N.C. 283, 286, 139 S.E. 2d 558, 561 (1965).\nThe question is whether this second prosecution of Ballard for the armed robbery allegedly committed by him in the A & P store on August 21, 1970, violates his constitutional guarantee against double jeopardy.\n\u201c[Jjeopardy 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 the case.\u201d State v. Bell, 205 N.C. 225, 228, 171 S.E. 50, 52 (1933); State v. Crocker, supra at 449, 80 S.E. 2d at 245; State v. Birckhead, 256 N.C. 494, 504, 124 S.E. 2d 838, 846 (1962).\nUnquestionably, at December 7, 1970 Criminal Session, jeopardy attached in respect of the crime charged in the indictment returned at October 12, 1970 Criminal Session. The judgment of nonsuit barred further prosecution for that crime.\nBoth indictments' are based on G.S. 14-87 which, in pertinent part, provides: \u201cAny person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a felony . . . . \u201d\nThe indictments returned at October 12, 1970 Criminal Session and at January 4, 1971 Criminal Session are identical except the italicized portions thereof. Each indictment charged all elements of the crime of armed robbery as defined in G.S. 14-87. Each charged the crime was committed on August 21, 1970, and involved the theft of $1,501.17 of the money of the Great Atlantic and Pacific Tea Company, Incorporated. The indictment returned at October 12, 1970 Criminal Session charged that the \u201clife of Kane Parsons was endangered and threatened,\u201d and that the $1,501.17 was taken from the \u201cperson of Kane Parsons.\u201d The indictment returned at January 4, 1971 Session charged that the \u201clives of Pat Britt and Nolan Smith were endangered and threatened,\u201d and that the $1,501.17 was taken \u201cfrom the presence and person of Pat Britt and Nolan Smith.\u201d\nIn respect of \u201carmed robbery\u201d as defined in G.S. 14-87, \u201c [f] orce or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense.\u201d State v. Mull, 224 N.C. 574, 576, 31 S.E. 2d 764, 765 (1944). Accord: State v. Sawyer, 224 N.C. 61, 65, 29 S.E. 2d 34, 37 (1944); State v. Lynch, 266 N.C. 584, 586, 146 S.E. 2d 677, 679 (1966). Variance between the allegations of the indictment and the proof in respect of the ownership of the property taken is not material. State v. Rogers, 273 N.C. 208, 212-13, 159 S.E. 2d 525, 528-29 (1968). \u201c[I]n an indictment for robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property.\u201d State v. Sawyer, supra at 65-66, 29 S.E. 2d at 37. The gravamen of the offense is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery.\nThe double-jeopardy test applicable on the present record is the \u201csame-evidence test,\u201d which is alternative in character. This test is defined in State v. Hicks, 233 N.C. 511, 516, 64 S.E. 2d 871, 875 (1951), in opinion by Justice Ervin, as follows: \u201cWhether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment [citations], or whether the same evidence would support a conviction in each case. [Citations.]\u201d\nIn the present case, the first alternative does not apply. Evidence sufficient to prove only the facts alleged in the second indictment would not have sustained a conviction under the first indictment. No fact concerning Kane Parsons was alleged in the second indictment.\nThe second alternative, whether the same evidence would support a conviction in each case, is the determinative test in the present case. Application of this test requires a review of the evidence offered at Ballard\u2019s trial on the second indictment.\nThe State\u2019s evidence, which consists of the testimony of five witnesses, is summarized below.\nJames Richard Strickland: On August 21, 1970, Strickland was an employee of the Ramsey Street A & P, and he observed defendants Marvin Ballard and Virgil Gaines, and a third man, \u201cat the door for about five seconds.\u201d He \u201cthen turned back to do the work he was doing.\u201d Someone said \u201cfreeze.\u201d Strickland turned around and saw \u201cGaines standing at his side with a gun up in the air at a distance of about two feet.\u201d He \u201clooked toward the office and saw a man up there with a gun pointed down in the office.\u201d That man was Marvin Ballard. Someone said, \u201cHurry up, chunk,\u201d Ballard got \u201cthe money out of the office.\u201d He told everyone to get on the floor, and Strickland complied. Ballard proceeded outside to a waiting car. The entire incident lasted \u201cfour or five minutes.\u201d\nNolan B. Smith: About 8:55 p.m. Smith and Mrs. Patricia Britt, fellow employees of the A & P, \u201chad just finished counting the till.\u201d Smith \u201cheard a voice say \u2018freeze,\u2019 and saw something move at a side window of the office inside which he was standing.\u201d \u201c [Smith\u2019s] office was a raised area located at the opposite end of the line of cash registers from the one that has been referred to as the first cash register.\u201d Marvin Ballard was standing 3% feet from him with a gun in his hand. Ballard first said, \u201cLet me have it,\u201d and then, \u201cHurry up, I mean business, let me have the money.\u201d Smith stood there and Mrs. Britt \u201cstarted getting the money together, someone brought a paper bag to her and she put money in the bag,\u201d amounting to approximately $175.00. Smith did not see Mrs. Britt actually give Ballard the money. He observed Ballard for a period of 20 to 30 seconds altogether. He looked in \u201cthe direction of the meat department and the produce department and saw another individual in that vicinity with a weapon.\u201d Smith was \u201clooking around over the store when he heard someone say \u2018everybody hit the floor.\u2019 \u201d When he heard this, he fell to the floor. The entire incident lasted \u201cno more than three or four minutes.\u201d\nMrs1. Patricia Britt: As \u201chead cashier,\u201d Mrs. Britt had just \u201cfinished checking Mr. Smith\u2019s till for the day\u201d when she saw Ballard. She had \u201cabout $1500 in the area.\u201d \u201cBallard had a gun in his hand and said, \u2018Give me the money.\u2019 \u201d \u201c [A] paper bag was handed to\u201d Mrs. Britt and she put the money in it. She did not remember \u201cwho hollered for a bag.\u201d \u201c[E] ither she or Nolan Smith\u201d gave the bag over to Ballard. Mrs. Britt did not know whether she was the one who gave Ballard the bag. She hit the floor upon the command to do so.\nJohn William Gooding: \u201c[T]hree colored males\u201d entered the store together. Ballard went to the office window, located \u201cabout 35 feet\u201d from the \u201cfirst check-out register\u201d where Good-ing was bagging groceries for a customer, \u201cthe farthest [counter] down from the office.\u201d Ballard pulled a gun and laid it on the window ledge, pointing it toward the office. Another of of the three came near Gooding and said, \u201cEverybody freeze,\u201d pulling a pistol from under his shirt. This man was \u201cin the vicinity of Eichard Strickland, also, about 3 or 4 feet from him.\u201d \u201cSomeone\u201d brought Ballard a paper bag. Gooding \u201cdid not actually hear [Ballard] ask for money.\u201d Gooding had a \u201cside angle view\u201d of Ballard, and observed him for \u201c30 or 40 seconds.\u201d At some point Ballard turned and pointed his gun at Carl Brig-man, another employee of the store. Someone yelled, \u201cHurry up, chunk.\u201d With that, Ballard \u201churried and got out of the store and said, \u2018Everybody on the floor,\u2019 \u201d with which command Gooding complied.\nKane Parsons: Ballard and two others entered the store and split up. Ballard came toward the \u201ccheck-out counter, which is fartherest from the office,\u201d where Parsons, an employee of the A & P, was standing. Parsons\u2019s attention was diverted to another individual who was standing \u201cright beside\u201d Strickland. Parsons was able to observe Ballard \u201cfor not over 12 to 15 seconds.\u201d Ballard approached within 20 or 30 feet of Parsons. Parsons never saw Ballard \u201cin the area of the office\u201d and \u201cnever saw Ballard pull a pistol.\u201d \u201c[I]t was approximately half a minute from the time [Parsons] observed the people coming in the door until he hit the floor.\u201d\nEvidence offered by Ballard, which consisted of his own testimony and that of Leslie Scott, tended to establish an alibi.\nAs indicated, Ballard defended on the ground he was not involved in any alleged robbery of the A & P store on August 21, 1970, without regard to the identity of the employees present on such an occasion. Although nonsuit was granted on the ground of variance, it was a determination of not guilty in respect of the robbery of the A & P store on August 21, 1970, if Kane Parsons was one of several A & P employees whose lives were endangered and threatened by Ballard in the perpetration of the robbery.\nThe present record does not contain the testimony before the jury at the first trial. It does contain the testimony before Judge McKinnon at a voir dire hearing to determine the admissibility of identification testimony. This was, by stipulation, used in the trial before Judge Bailey in lieu of conducting a new voir dire hearing. Witnesses at the voir dire hearing before Judge McKinnon included James Richard Strickland, Nolan B. Smith, Mrs. Patricia Britt, John William Gooding and Kane Parsons. Their testimony was substantially the same as their testimony before the jury in the trial before Judge Bailey.\nClearly, both indictments and the evidence at both trials relate to what occurred on the same occasion, namely, the robbery of the A & P store on August 21, 1970, allegedly by defendant and two others, perpetrated by endangering and threatening the lives of all employees then present. The evidence, on which Ballard was convicted at the second trial, tended to show that Ballard was one of three men who entered the store about 8:55 p.m. on August 21, 1970; that Ballard and one of his confederates were armed with and displayed pistols; that, in the perpetration of their crime, the robbers commanded all employees to \u201cfreeze\u201d and for everybody to \u201chit the floor,\u201d which commands were promptly obeyed; that the employees in the store who heard and obeyed these commands included Pat Britt, Nolan Smith and Kane Parsons; that, although the money was removed from the immediate presence of Pat Britt and Nolan Smith, all employees in the store were confronted by the robbers and had responsibility for the custody and care of the employer\u2019s money; and that the life of each was threatened and would have been further endangered if any one or more of these employees had offered resistance to the armed robbers. We have concluded that this evidence was sufficient to have sustained the conviction of Ballard at the first trial and that the termination thereof in his favor supports his plea of double jeopardy.\nThe duty of Kane Parsons to his employer would have required him to intervene to protect the property if he could have done so without further endangering his life. (Kane Parsons testified on voir dire that he was the assistant manager of this A & P store.) The fact that he happened to be farther from the property than Pat Britt and Nolan Smith when it was actually taken into possession by the robbers does not negate the fact it was taken from the presence of Parsons and all other employees then on duty in the store. The first indictment charged the robbery was \u201cfrom the person\u201d of Kane Parsons. However, the phrase \u201cfrom the person\u201d included a taking (of his employer\u2019s property) from the presence of Kane Parsons. Decisions in accord include those reviewed below.\nIn Austin v. State, 419 P. 2d 569 (Okl. Cr. 1966), the indictment charged robbery \u201cfrom the possession and person\u201d but the evidence indicated that the defendant removed money from a cash register unaided by the victim; the court found no material variance. In Baugh v. State, 211 Ga. 863, 89 S.E. 2d 504 (1955), variance between an indictment charging robbery \u201cfrom the person\u201d and evidence showing the money was taken from a drawer in the victim\u2019s bedroom was not deemed fatal. The same result obtained in State v. Williams, 183 S.W. 308 (Mo. 1916), in which the information charged robbery \u201cfrom his person, in his presence,\u201d but it appeared that the victim was shot and lying in an adjoining room unable to see the defendant rifling the cash drawer. In State v. Calhoun, 72 Iowa 432, 34 N.W. 194, 2 Am. St. Rep. 252 (1887), although the Iowa robbery statute required the taking of property \u201cfrom the person\u201d of another, and the evidence showed the taking took place in a room of the house different from that in which the putting in fear occurred, conviction was affirmed.\nIn Wright v. State, 468 S.W. 2d 422 (Tex. Cr. 1971), the indictment charged robbery by assault on Josephine Meyer, and the defendant received a life sentence. Meyer\u2019s testimony, however, showed that Wolfe was the person counting the money when the robbers appeared and that Wolfe was the A & P store manager. The court said: \u201cAs we view the facts, they do not show such exclusive care, control and management in Wolfe so as to render an allegation in Mrs. Meyer fatal to conviction . . . . The fact that the money was taken from Mrs. Meyer\u2019s possession rather than from her person would not call for a contrary result. Further, . . . any possession of the victim which is superior to that of the robber is sufficient ownership or possession to be subject to robbery . ...\u201d Id. at 424.\nIn Carreon v. State, 90 Tex. Cr. 572, 236 S.W. 985 (1922), the indictment charged the robbery of Darbyshire, though the evidence tended to show that the money was taken from the more immediate presence of Nold. Both Darbyshire and Nold were officers in the same company. The court held that, since the two had \u201cjoint possession,\u201d either could appropriately be named in the indictment as victim.\nAlthough decision herein is based on the legal principle stated in State v. Hicks, supra, namely, that the plea of double jeopardy bars a second prosecution when the same evidence would have supported a conviction at the first trial, we are advertent to the holding of the Supreme Court of the United States that the principle of collateral estoppel, or res judicata, inheres in the Fifth Amendment\u2019s ban against subjecting any person \u201cto be twice put in jeopardy.\u201d Ashe v. Swenson, 397 U.S. 436, 25 L.Ed. 2d 469, 90 S.Ct. 1189 (1970). For present purposes, it is unnecessary to define the differences, if any, between double jeopardy and collateral estoppel. Both are based on the concept that essentially the same issue was for determination in each trial.\nThis case is of first impression in this jurisdiction involving a factual situation in which several employees of a store or other place of business are confronted by armed robbers and the life of each employee is endangered and threatened. Decision on this appeal is that the judgment of nonsuit for variance was improvidently entered. Since it protects1 Ballard from the second prosecution, it may be that a guilty person will escape punishment. Even so, to hold otherwise would be to adopt a rule whereby failure to allege in the indictment the name or names of the employee or employees who were nearest the money or most threatened and endangered would necessitate nonsuit.\nFor the reasons stated, the judgment of the court below is arrested; and, unless confined on account of other charges, Ballard is entitled to his discharge.\nReversed.\nJustices Lake, Branch and Huskins dissent.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Weathers for the State.", "William S. Geimer, Assistant Public Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARVIN EDWARD BALLARD\nNo. 56\n(Filed 9 February 1972)\n1. Constitutional Law \u00a7 34; Criminal Law \u00a7 26 \u2014 double jeopardy\nThe fundamental principle that no person can be twice put in jeopardy of life or limb for the same offense comes within the purview of the \u201claw of the land\u201d clause of Art. I, Sec. 17 of the N. C. Constitution.\n2. Constitutional Law \u00a7 34; Criminal Law \u00a7 26 \u2014 double jeopardy\nThe double-jeopardy clause of the Fifth Amendment to the U. S. Constitution is applicable to the states through the Fourteenth Amendment.\n3. Criminal Law \u00a7 110 \u2014 nonsuit \u2014 not guilty verdict\nWhether correct or erroneous, a judgment of nonsuit in an armed robbery prosecution had the force and effect of a verdict of \u201cnot guilty\u201d as to the armed robbery for which defendant was then being tried. G.S. 15-173.\n4. Criminal Law \u00a7 26 \u2014 when jeopardy attaches\nJeopardy 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 the case.\n5. Robbery \u00a7 4 \u2014 armed robbery \u2014 property taken \u2014 variance between indictment and proof\nIn an armed robbery prosecution, variance between the allegations of the indictment and the proof in respect of the property taken is not material.\n6. Robbery \u00a7 2 \u2014 armed robbery \u2014 indictment \u2014 ownership of property taken\nIn an indictment for armed robbery the allegation of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property.\n7. Robbery \u00a7 1 \u2014 gravamen of armed robbery\nThe gravamen of the offense of armed robbery is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery.\n8. Criminal Law \u00a7 26 \u2014 double jeopardy \u2014 same evidence test\nA plea of former jeopardy bars a second prosecution when the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment, or when the same evidence would support a conviction in each case.\n9. Criminal Law \u00a7 26 \u2014 armed robbery of A & P store \u2014 named employee \u2014 different employees named in second indictment \u2014 double jeopardy\nJudgment of nonsuit on the ground of variance was entered in defendant\u2019s trial upon an indictment charging armed robbery of an A & P store in which the life of a named employee of the store was endangered and threatened and in which money belonging to the store was taken \u201cfrom the person\u201d of the named employee. Defendant was subsequently prosecuted upon another armed robbery indictment for the same occurrence which alleged that the lives of two other employees were endangered and threatened and that the money was taken \u201cfrom the presence and person\u201d of the two other employees. The evidence in both trials showed that the robbery was perpetrated by endangering and threatening all employees then present in the store, including those named in both indictments, but that the money was removed from the immediate presence of the two employees named in the second indictment. Held: The same evidence would support a conviction in both trials, and defendant\u2019s plea of former jeopardy prior to his second trial should have been allowed.\n10. Robbery \u00a7 4 \u2014 armed robbery of store \u2014 money taken from presence of all employees\nThe fact that one employee of a store happened to be farther from the store\u2019s money than two other employees when it was taken into possession by robbers does not negate the fact that the money was taken from the presence of that employee and all other employees then on duty in the store.\n11. Robbery \u00a7 2 \u2014 armed robbery of store \u2014 allegation of \u201cfrom the person\u201d\u2014 taking \u201cfrom the presence\u201d\nAn allegation charging robbery \u201cfrom the person\u201d of a store employee includes a taking of the employer\u2019s property from the presence of the employee.\nJustices Lake, Branch and Huskins dissent.\nAppeal by Marvin Edward Ballard from Bailey, /., January 4, 1971 Criminal Session of Cumberland Superior Court, transferred for initial appellate review by the Supreme Court under its general order of July 31, 1970, entered pursuant to G.S. 7A-31(b) (4), docketed and argued as No. 32 at Fall Term 1971.\nAn indictment returned at the January 4, 1971 Session of Cumberland Superior Court charged that, on August 21, 1970, Marvin Edward Ballard (Ballard) \u201cunlawfully, wilfully, and fe-loniously having in his possession and with the use and threatened use of firearms, and other dangerous weapons, implements, and means, to wit: a pistol, whereby the lives of Pat Britt and Nolan Smith were endangered and threatened did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal, and carry away One Thousand, Five Hundred and One Dollars and Seventeen Cents ($1,501.17) in money to wit: United States Currency and Coins of the value of One Thousand, Five Hundred and One Dollars and Seventeen Cents ($1,501.17) from the presence and person of Pat Britt and Nolan Smith property of the Great Atlantic and Pacific Tea Company, Incorporated, . . . . \u201d (Our italics.)\nWhen arraigned on said indictment, Ballard moved to dismiss, basing his motion upon a plea of former jeopardy. The court denied the motion and Ballard excepted. Thereupon, Ballard pleaded not guilty.\nThe indictment against Ballard and an indictment against Virgil Lee Gaines, which contained identical charges, were consolidated for trial and tried before Judge Bailey during the third week of the January 4, 1971 Session. At the conclusion of the State\u2019s evidence, the court granted the motion of Gaines for judgment as in case of nonsuit. Thereafter Ballard testified and offered evidence. As to Ballard, the jury returned a verdict of \u201cGuilty as Charged,\u201d and judgment imposing a prison sentence of not less than sixteen years nor more than twenty years was pronounced. Ballard excepted and appealed.\nAttorney General Morgan and Assistant Attorney General Weathers for the State.\nWilliam S. Geimer, Assistant Public Defender, for defendant appellant." }, "file_name": "0479-01", "first_page_order": 499, "last_page_order": 510 }