State v. Malloy , 53 N.C. App. 369 ( 1981 )

WHICHARD, Judge.

The sole issue presented is whether the not guilty verdict on the assault charge barred subsequent prosecution of the robbery charge on grounds of double jeopardy. It did not.

If each of two criminal offenses, as a matter of law, requires proof of some fact, proof of which fact is not required for conviction of the other offense, the two offenses are not the same and a former jeopardy with reference to the one does not bar a subsequent prosecution for the other.

State v. Overman, 269 N.C. 453, 465, 153 S.E. 2d 44, 54 (1967). Conviction of misdemeanor assault requires proof of infliction of or attempt to inflict serious injury, G.S. 14-33(b)(1), while conviction of common law robbery does not. Conviction of common law robbery requires proof that property was taken from another against his will by violence or putting him in fear, State v. Black, 286 N.C. 191, 209 S.E. 2d 458 (1974), while conviction of misdemeanor assault does not. Thus, each offense for which defendant was tried required proof of a fact not required for conviction of the other; and acquittal on the assault charge did not bar prosecution for the robbery.

No error.

Chief Judge MORRIS and Judge WEBB concur.