State v. Bowman
| Decision Date | 02 November 1949 |
| Docket Number | 291 |
| Citation | 55 S.E.2d 789,231 N.C. 51 |
| Parties | STATE v. BOWMAN. |
| Court | North Carolina Supreme Court |
Criminal prosecution upon a warrant issued out of the recorder's court of Caldwell County, 8 March, 1948 charging defendant with willful failure to provide support for his illegitimate child begotten upon the body of one Irene Roberts.
Upon trial in recorder's court the jury returned a verdict of guilty. Judgment was pronounced thereon imposing a six months' jail sentence. Defendant appealed therefrom to Superior Court.
When the case was called, and before pleading, and the impaneling of a jury, defendant entered a plea of former jeopardy. Pless, J., then presiding, found facts in respect thereto substantially these: That a warrant issued out of the recorder's court of Caldwell County on 7 March, 1947 charging defendant with willful failure to support his illegitimate child, born of Irene Roberts; that defendant was found guilty in said court and judgment was pronounced; that he appealed therefrom to Superior Court; that in course of the trial in Superior Court on such appeal, when it appeared that the prosecuting witness, Irene Roberts, had made no demand of the defendant that he support the child in question, the court in its discretion withdrew a juror and ordered a mistrial; and that later the Solicitor for the State took a nol. pros. in the case. And another warrant, the one on which present prosecution is based, was issued on 8 March, 1948.
On these facts the judge held that the plea of former jeopardy is not well taken. Defendant excepted.
A trial in Superior Court followed, -- resulting in a jury verdict of guilty, on which the court sentenced defendant to a term of six months in the common jail of Caldwell County to work the roads under supervision of the State Highway and Public Works Commission. (Counsel for the prosecuting witness recommended to the court that the sentence be suspended upon condition that defendant support the child.) ('Counsel for defendant will not consent. ') Defendant appealed to Supreme Court and assigned error, among which is that the court erred 'in overruling defendant's plea on former jeopardy'. All the above appears from record on former appeal, No. 289 at Spring Term 1949.
On such appeal a new trial was ordered for error in admitting incompetent evidence. See 230 N.C. 203, 52 S.E.2d 345.
And when the case came on for second time in Superior Court of Caldwell County, it appears from the record on this appeal that before the jury was selected and chosen defendant again entered a plea of former jeopardy--and the motion was overruled, to which he excepted.
On such re-trial evidence was offered by the State, and by the defendant.
The jury again found the defendant guilty. On the verdict so finding the judgment of the court is that defendant be confined in the common jail of Caldwell County for a term of six months to be assigned to work on the roads under the control and supervision of the State Highway and Public Works Commission. He appeals therefrom to Supreme Court, and assigns error.
Harry M. McMullan, Atty. Gen., Hughes J. Rhodes, Asst. Atty. Gen for the State.
W. H. Strickland, Lenoir, John C. Stroupe, Hickory, L. M. Abernethy, Granite Falls, for defendant-appellant.
By referring to record on former appeal, No. 289 at Spring Term 1949 of this Court, it is seen that the first assignment of error brought forward there, as it is now, by defendant, is based upon exception to the ruling of the court in denying his plea of former jeopardy. This ruling is accordant with prevailing decisions of this Court, -- so much so, that on former appell the exception merited no particular consideration. And on this appeal the same authorities are cited by defendant as on former appeal. If the point could be presented again on this appeal, it is still without merit. It is apparent that the mistrial in question was ordered in the interest of justice. As was said b...
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