145 S.E.2d 309 (N.C. 1965), 253, State v. Hollars

Docket Nº:253.
Citation:145 S.E.2d 309, 266 N.C. 45
Party Name:STATE of North Carolina v. Cecil HOLLARS.
Case Date:December 15, 1965
Court:Supreme Court of North Carolina
 
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Page 309

145 S.E.2d 309 (N.C. 1965)

266 N.C. 45

STATE of North Carolina

v.

Cecil HOLLARS.

No. 253.

Supreme Court of North Carolina.

December 15, 1965

Page 310

[Copyrighted Material Omitted]

Page 311

[Copyrighted Material Omitted]

Page 312

Atty. Gen. T. W. Bruton, and Theodore C. Brown, Jr., Staff Attorney, Raleigh, for the State.

Don Evans, Rocky Mount, for defendant appellant.

SHARP, Justice.

Defendant's first assignment of error is to the failure of the court to sustain his plea of former jeopardy. He argues that, since the State failed to protect his constitutional rights in the first trial of these two cases, the court could not again try him for the same offense. The judge correctly denied this plea; this contention has heretofore been decided against defendant. State v. Gainey, 265 N.C. 437, 144 S.E.2d 249; State v. Anderson, 262 N.C. 491, 137 S.E.2d 823; State v. White, 262 N.C. 52, 136 S.E.2d 205.

Defendant next assigns as error the court's denial of his motion that he be discharged because he had not been given a speedy trial. In support of this motion, defendant's counsel made a statement to the court. The solicitor for the State then made a statement. It was upon these statements, which contained no material conflict, that the court made its ruling. They are summarized as follows: Defendant was not tried immediately after his sentence was vacated[266 N.C. 50] because the solicitor petitioned the Supreme Court for a writ of certiorari to review the order of Cowper, J. He was not tried at the August 1963 Term because the presiding judge, Honorable George Fountain, felt that the Nash County cases should await the retrial of the Johnston County Case (No. 9795). According to defendant's counsel, the allegation is that 'after this particular armed robbery, (defendant) went to Johnston County and participated in another armed robbery there.' (As previously noted, the Johnston County case has not yet been retried.) From time to time, defendant wrote his counsel inquiring why his case was not tried, but counsel did not move the court that he be brought to trial. In February 1964, he wrote defendant that his case would be tried in March; but, at the March Term, for personal reasons, defendant's attorney requested and was granted a continuance. In August, at defendant's instance, counsel requested the solicitor to calendar the case and the solicitor agreed to try the case at the August Term. The case was not tried however; nor was it called to the court's attention. At the October Term, the presiding judge was the Honorable Rudolph Mintz, who had presided at defendant's first trial in November 1960. He was also the presiding judge at one other term. He preferred not to retry defendant and counsel did not insist. At another term Honorable Hubert E. May, the presiding judge, had, as solicitor, prosecuted defendant in November 1960. He

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disqualified himself. The case was calendared for trial at the May 1965 Session. At that time, the post-conviction petition of Rufus Gainey, filed under G.S. § 15-217, was pending. He had also been convicted in November 1960, of the escape and armed robbery in which defendant was alleged to have participated, and it was the solicitor's desire to retry defendant and Gainey at the same time if Gainey were awarded a new trial. See State v. Gainey, supra. The order awarding Gainey a new trial was entered Thursday afternoon. At noon on Friday, the following day, counsel for defendant, for the first time, made a motion that...

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