State v. Fambrough , 28 N.C. App. 214 ( 1975 )

220 S.E.2d 370 (1975) 28 N.C. App. 214

STATE of North Carolina
v.
Carl Thomas FAMBROUGH, also known as Carl Thomas McDaniels.

No. 7525SC565.

Court of Appeals of North Carolina.

December 17, 1975.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Myron C. Banks, Raleigh, for the State.

Butner, Rudisill & Brackett by J. Steven Brackett, Hickory, for defendant.

CLARK, Judge.

In reviewing the record as requested by defendant, we find that only one robbery occurred, in which two kinds of property were taken, money and a pistol. The two indictments charged separate offenses. Clearly both indictments and the evidence relate to what occurred on the same occasion. The same evidence would support a conviction on each charge. Under the "same evidence test", this amounts to double jeopardy. State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972).

Though the trial court imposed identical concurrent sentences to imprisonment on each charge, this does not cure the constitutional guarantee against double jeopardy. State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972).

For the reasons stated

In Case No. 75CR692 judgment is arrested;

In Case No. 75CR691 no error.

BROCK, C. J., and HEDRICK, J., concur.