State v. Correll, 222

Docket Nº222
Citation50 S.E.2d 717, 229 N.C. 640
Case DateDecember 15, 1948
CourtUnited States State Supreme Court of North Carolina

Criminal prosecution upon a bill of indictment charging defendnat with murder of one Charles Baker.

Defendant was originally tried at the March Term 1947 of Superior Court of Wilkes County, and convicted of manslaughter, and given a sentence of from three to five years in the State Prison. He appealed to Supreme Court, and a new trial was awarded. See 228 N.C. 28, 44 S.E.2d 334.

When the case came on for new trial the solicitor for the State announced in open court that the State would not place defendant on trial for murder in the first degree, but for murder in the second degree, or manslaughter, as the evidence may warrant. Thereupon defendant filed a plea in bar for that the State having elected in the first instance not to put him on trial for murder in the first degree, but for murder in the second degree, or manslaughter, as the facts might warrant, the verdict of guilty of manslaughter only is equivalent to a verdict of not guilty of murder in the second degree; and hence to put him on trial for murder in the second degree at the new trial ordered by the Supreme Court would constitute double jeopardy in violation of his constitutional rights. The trial judge, finding the facts to be as stated in the plea, but being of contrary conclusion of law, overruled the plea, and defendant excepts.

The evidence offered by the State on the re-trial is in substantial accord with that introduced by the State on the first trial. And in view of decision reached on this appeal a recital of the evidence is unnecessary. Defendant offered no evidence, and rested his case on the State's evidence.

Verdict Guilty of murder in the second degree. Judgment: Imprisonment in Central Prison at Raleigh for a term of not less than seven nor more than ten years.

Defendant appeals therefrom to Supreme Court, and assigns error.

Harry McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph Moody, Asst. Attys. Gen., for the State.

Hayes & Hayes and W. H. McElwee, all of North Wilkesboro, Jones & Bowers, of Newland, and Fate J. Beal, of Lenoir, for defendant-appellant.


Careful consideration of all the eighty six assignments of error covering eighty nine exceptions presented by defendant on this appeal, fails to reveal prejudicial error for which the judgment rendered on verdict returned in the trial below may be disturbed. However, it seems expedient to advert specifically to a few of them.

Four of the assignments of error relate to the action of the trial judge in overruling defendant's plea in bar based upon verdict of manslaughter on the first trial as hereinabove stated, and to portions of the charge admitting of a verdict of murder in the second degree on this trial. It appears however, from former decisions of this Court that it is an accepted principle of law in this State that when on appeal by defendant from judgment on a verdict of guilty in a criminal prosecution a new trial is ordered, the case goes back to be tried on the bill of indictment as laid. State v. Stanton, 23 N.C. 424; State v Grady, 83 N.C. 643; State v. Bridgers, 87 N.C. 562; State v. Craine, 120 N.C. 601, 27 S.E. 72; State v. Groves, 121 N.C. 563, 28 S.E. 262; State v. Freeman, 122 N.C. 1012, 29 S.E. 94; State v. Gentry, 125 N.C. 733, 34 S.E. 706; State v. Matthews, 142 N.C. 621, 55 S.E. 342; State v. Beal, 202 N.C. 266, 162 S.E. 561, 80 A.L.R. 1101.

In State v. Stanton, supra, this Court in opinion by Ruffin, C. J., finding error in the judgment from which appeal was taken, stated that 'as this is done at the instance of the prisoner, the former verdict must be set aside entirely, and a venire de novo awarded, to try the whole case. ' This decision rendered in the year 1841 established the principle which has been recognized and applied throughout the subsequent years. For full discussion of the subject see opinion by Adams, J. (1932) in State v. Beal, supra.

Two other assignments of error relate to the failure of the court to give a special instruction requested by defendant pertaining to the right of a person to kill in defense of another. In the course of the charge to the jury the court adverted to the fact that defendant contended that he fired the fatal shot in defense of himself and of his companion, Miss Fields, but did not give the instruction as requested. Though defendant, as he says through his counsel, 'leans very heavily' on these exceptions, and considers the matter to which they relate highly prejudicial to him, the evidence fails to present a situation for the application of the principle of the right of defendant to kill in defense of Miss Fields. The evidence is to the effect that after defendant had slapped Charles Baker behind the counter and Charles Baker had gotten his pistol from the cash register, behind the counter, defendant, followed by Baker, walked out on the dance floor and got Miss Fields between him and Baker, and put his left hand on her left shoulder and drew his gun and fired over her right shoulder. And there is no evidence that Baker showed any disposition to harm Miss Fields. All the evidence is that his attention was directed to defendant, with whom he was having the difficulty.

Three other assignments of error are directed to rulings of the court in respect to objections to argument of counsel for the private prosecution: (1) The record shows that in the course of argument of one member of the private prosecution, he pointing his finger at defendant, stated 'I argue to you the defendant is a married man. I don't know whether that is his wife over beside him or not'; that objection by defendant was sustained, and he excepted; that the court cautioned counsel to...

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