State v. Casey

• Decision Date: 30 June 1853
• Citation: 44 N.C. 209
• Court: North Carolina Supreme Court
• Parties: THE STATE v. WRIGHT CASEY et al.

44 N.C. 209

THE STATE

v.WRIGHT CASEY et al.

Supreme Court of North Carolina.

June Term, 1853.

Where a bill of indictment for an assault and battery was found in the Superior Court against the defendant, and pending the same after his knowledge thereof, and before his arrest, he procured himself to be indicted for the same offence in the County Court, and there voluntarily submitted and was fined:-- Held that the conviction in the County Court was a good defence to the indictment in the Superior Court.

(The case of the State v. Tisdale, 2 Dev. & Bat, 159, cited and approved.)

THE defendants were tried at Wayne, before his Honor, Judge MANLY, on the last Spring Circuit, upon an indictment for an assault aud battery, found by the grand jury at Fall Term, 1852. Their plea was former conviction, to which the Solicitor for the State replied “that the defendants, after the finding of the bill in this Court, and after their knowledge thereof, and during the pendency of the same, procured an indictment for the same offence to be found against them in the County Court of Wayne county, at February Term, 1853, and voluntarily submitted upon said indictment, and were fined, and have paid the said fine.” It was admitted that the offence charged was committed in Wayne county, and that the County Court had jurisdiction thereof, unless the same were taken away by the matters in said replication alleged.

To this replication the defendants demurred; and his Honor gave judgment sustaining the demurrer, from which the Solicitor for the State prayed and obtained an appeal to the Supreme Court.

Attorney General, for the State .

Husted and J. H. Bryan, for the defendant .

BATTLE, J.

We cannot distinguish the principle which must govern this case from that which was decided by this Court in the State v. Tisdale, 2 Dev. & Bat. Rep. 159. In that case, the defendant pleaded a former conviction for the same offence in the County Court. The Attorney General for the State replied, that before the prosecution commenced in the County Court, the present bill was found against the defendant, and that the prosecution had been regularly kept up. To this replication the defendant rejoined that he had no legal notice of the prosecution in the Superior Court, before his conviction in the County Court, and to this rejoinder the Attorney General demurred. The demurrer was overruled and judgment given for the defendant, which was affirmed by this Court.

The only difference between the replication in that case and the present, consists in the allegations in this, that the defendants had knowledge of the bill having been found in the Superior Court, and procured an indictment to be found against them in the County Court, and...