State v. Williams

• Decision Date: 20 October 1909
• Citation: 65 S.E. 908,151 N.C. 660
• Parties: STATE . v. WILLIAMS.
• Court: North Carolina Supreme Court

65 S.E. 908

151 N.C. 660

STATE .

v.WILLIAMS.

Supreme Court of North Carolina.

Oct. 20, 1909.

1. Criminal Law (§ 157^*)—Indictment — Statute of Limitations—Effect.

An indictment or presentment is the beginning of the prosecution, and arrests the running of the statute of limitations.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 282, 283; Dec. Dig. § 157.*]

2. Criminal Law (§ 180*)—Nolle Prosequi —Former Jeopardy.

A nolle prosequi in criminal proceedings does not amount to an acquittal of the defendant; but he may again be prosecuted for the same offense, or fresh process may be issued to try him on the same indictment, at the discretion of the prosecuting officer.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 316, 328; Dec. Dig. § 180.*]

3. Criminal Law (§ 160*)—Indictment — Nolle Prosequi—Effect.

Revisal 1908, § 3147, requires indictments for misdemeanors to be brought within two years. Revisal 1908, § 3273, provides that a nolle prosequi "with leave" shall be entered in all criminal actions in which the indictmenthas been pending for two terms of court and the defendant has not been apprehended, and in which a nolle prosequi has not been entered, etc. Defendant was indicted for maintaining a nuisance at April term, 1906. A nolle prosequi, with leave to issue a capias upon the same bill, was entered at November term, 1906. A capias was issued December, 1908, and he was arrested in January, 1909. Held, that the prosecution of the indictment was not ended by the entering of the nolle prosequi with leave, and that the prosecution was upon the original indictment, and was not barred by the statute.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 160.^2-*]

Appeal from Superior Court, Columbus County; W. J. Adams, Judge.

Don Williams was convicted of maintaining a nuisance, and he appeals. Affirmed.

Grady & Williamson, for appellant.

Bickett, Atty. Gen., for the State.

WALKER, J. The defendant was tried on a bill of indictment for a nuisance, found by the grand jury at April term, 1906, of the superior court of Columbus county, and appealed from the judgment of conviction. He relied upon the statute of limitations. A nolle prosequi, with leave to issue a capias upon the same bill, was entered at November term, 1906. A capias was issued December, 1908, and the defendant was arrested on January 4, 1909. The court held that the statute did not bar the further prosecution of the indictment, and whether it does or not is the only question presented by the assignment of errors.

An indictment or presentment marks the beginning of the prosecution and arrests the running of the statute of limitations. Revisal 1908, § 3147; State v. Cox, 28 N. C. 440. "A nolle prosequi in criminal proceedings does not amount to an acquittal of the defendant; but he may again be prosecuted for the same offence, or fresh process may be issued to try him on the same indictment, at the discretion of the prosecuting officer." State v. Thornton, 35 N. C. 257; State v. Thompson, 10 N. C. 613; State v. Smith, 129 N. C. 547, 40 S. E. 1.

Revisal 1908, § 3273, provides as follows: "A nolle prosequi 'with leave' shall be entered in all criminal actions in which the indictment has been pending for two terms of court, and the defendant has not been apprehended and in which a nolle prosequi has not been entered, unless the judge, for good cause shown, shall order otherwise. The clerk of the superior court...