The main contention of defendants is their plea of former jeopardy. The first bill of indictment upon which defendants were tried and acquitted was for the homicide of William Davis, on 13 October, 1934, and drawn in conformity with N. 0. Code, 1935, sec. 4614. The second bill of indictment upon which defendants were tried and convicted was for the robbery with firearms from Ed Davis, and *184drawn in conformity with N. C. Code, 1935 (Michie), sec. 4267 (a), which is as follows: “Any 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 and, upon conviction thereof, shall be punished by imprisonment for not less than five or not more than thirty years.”
The two crimes are separate and distinct: (1) For the homicide of William Davis, (2) for robbery with firearms from Ed Davis, under the statute. There is no identity of offenses.
The defendants do not challenge the verdict of guilty under sec. 4267 (a), on which the defendants were convicted and sentenced, but rely for an acquittal on the ground of the plea of former jeopardy. The defendants further contend that the court below committed error in refusing to permit the defendants to have their jilea of former jeopardy first determined and passed upon before requiring them to proceed with the trial of the action upon its merits. We do not think that the exceptions and assignments of error on either contention can be sustained.
In S. v. Cale, 150 N. C., 805 (807), we find: “According to the strict rules of criminal procedure, the pleas of ‘not guilty’ and ‘former conviction’ could not be entertained and determined before one and the same jury; and it is further recognized and established that, on a plea of former conviction, when material questions of fact are involved in the issue, as in the case of dispute as to the identity of the parties, the determination of such plea is for the jury. But, as shown in a learned opinion by the present Chief Justice, in S. v. Ellsworth, 131 N. C., 773, the plea of former conviction is not treated in many respects as one involving the substantial question of guilt or innocence of defendant, but as one approaching more nearly the determination of a civil issue, and by consent it may be entertained and determined at the same time with a plea of not guilty, and, when so agreed upon, may be heard and decided by the court. There was no error, therefore, in the method by which the case has been determined,” citing authorities. S. v. Ellis, 200 N. C., 77 (80).
We see no prejudicial error in this record in determining the plea of former jeopardy under the plea of “Not guilty” before the same jury. The matter was one of procedure and, under our liberal practice, was in the sound discretion of the court below, and cannot be held as prejudicial error.
*185In Yol. 1 (12th Ed.), Wharton’s Criminal Law, pp. 537-8, part of sec. 394, it is declared: “Same act may constitute two or more offenses which are distinct from each other. In such cases the accused may be separately prosecuted and punished for each, and a conviction or acquittal in a prosecution for the one will not constitute a bar to a trial for the other. Thus, where two or more are assaulted, robbed, or their goods stolen, or are shot or murdered by one and the same act and at the same time, conviction or acquittal on an indictment for offense against the one will be no bar to a trial on an indictment charging the offense against the other.”
In Miller on Criminal Law (Handbook Series), p. 543, part sec. 187, it is said: “Where the same act constitutes distinct offenses, neither an acquittal nor a conviction for one offense will bar a subsequent prosecution for the other.” S. v. Nash, 86 N. C., 650; S. v. Gibson, 170 N. C., 697 (700).
The defendants rely on S. v. Bell, 205 N. C., 225, and S. v. Clemmons, 207 N. C., 276, which we think distinguishable from the present action.
For the reasons given, we find in the judgment of the court below
No error.