STATE of North Carolina
v.
Joshua MOORE.
No. 778SC265.
Court of Appeals of North Carolina.
September 21, 1977.*340 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Richard L. Griffin, Raleigh, for the State.
Turner & Harrison, by Fred W. Harrison, Kinston, and I. Joseph Horton, Snow Hill, for defendant appellant.
MORRIS, Judge.
The defendant's first assignment of error is directed to the court's failure to grant a nonsuit as to the two assault charges at the close of all the evidence. In support of this assignment of error the defendant argues that the indictment for murder was based upon the felony assault charge under the felony murder theory and that the doctrine of merger operates so as to require the dismissal of the assault charge upon the dismissal of the murder charge. Defendant asserts that failure to dismiss the assault charge places the defendant twice in jeopardy. We disagree.
The common law doctrine of merger is a judicial tool to prevent the subsequent prosecution of a defendant for a lesser included offense once he has been acquitted or convicted of the greater. It is primarily a device to prevent the defendant from being placed twice in jeopardy for the same offense. 22 C.J.S. Criminal Law § 10. The defendant asserts that the failure of the felony murder charge should require the judge to nonsuit the State as to the assault charge at the same trial, but gives *341 no authority for such a proposition, and our research reveals none. The cases relied upon by the defendant hold that a defendant, convicted and sentenced for murder based upon a felony murder theory cannot also be sentenced for the lesser included felony since the lesser included felony is said to have merged into the murder charge, the lesser charge having been proved as essential elements in the offense of murder. State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972). In the instant case there was no murder conviction, but rather a dismissal of the murder charge. The cases cited do not support the proposition that the doctrine of merger be extended to require the dismissal of all lesser included charges upon the dismissal of the murder charge. The defendant cites authority to the effect that a defendant acquitted of a greater offense cannot subsequently be tried for a lesser included offense. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970). This rule of law does not aid the defendant, however, for he was not subjected to a subsequent prosecution. The defendant was on trial under three indictments and only onethe murder chargewas dismissed. The trial continued upon the assault indictments. The defendant asserts that the prohibition against double jeopardy prohibits prosecution under the assault indictments since they, having merged with the murder charge, should have been dismissed when the murder charge was dismissed. Apparently, the defendant's reasoning is that the continued prosecution under the assault indictments after the point at which they should have been dismissed, constitutes a second prosecution. Having decided that the assault charges had not merged so as to require their dismissal with the murder charge, the contention regarding double jeopardy becomes groundless.
The defendant's second assignment of error is directed to the court's limitation of defense counsel's argument before the jury. The trial judge sustained an objection to the defense attorney's comment relating to the possibility of life imprisonment facing defendant when the trial began. Defendant contends that G.S. 84-14, which, in part, provides that "... the whole case as well of law as of fact may be argued to the jury" confers upon counsel the right to have presented this argument. At issue is whether the "whole case" under the statute would include the murder indictment no longer before the jury because of its dismissal by the trial judge. The case before the jury at the time of counsel's argument consisted of the two assault indictments. The murder charge had been dismissed and comment relating to a possible sentence under that charge was neither relevant nor material to the remaining assault charges before the jury and was not within the protection of the statute. The trial judge is allowed discretion in controlling the arguments before the jury and he may restrict comment on facts not material to the case. State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960); State v. Williams, 3 N.C.App. 463, 165 S.E.2d 52 (1969). The murder charge, having been dismissed, was no longer material to the case before the jury, and it was within the judge's discretion to restrict comment relating to it.
No error.
BROCK, C. J., and BRITT, J., concur.