State v. Correll, No. 222.
| Docket Nº | No. 222. |
| Citation | 50 S.E.2d 717, 229 N.C. 640 |
| Case Date | December 15, 1948 |
| Court | United States State Supreme Court of North Carolina |
50 S.E.2d 717
229 N.C. 640
STATE.
v.
CORRELL.
No. 222.
Supreme Court of North Carolina.
Dec. 15, 1948.
[50 S.E.2d 717]
Appeal from Superior Court, Wilkes County; Dan K. Moore, Judge.
John Horace Correll was convicted of murder in the second degree, and he appeals.
No error.
Criminal prosecution upon a bill of indictment charging defendant 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
[50 S.E.2d 718]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.
WINBORNE Justice.
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...
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Green v. United States, No. 46
...v. Palmer, 109 N.Y. 413, 415—420, 17 N.E. 213; People v. McGrath, 202 N,.y. 445, 450—451, 96 N.E. 92. North Carolina.—State v. Correll, 229 N.C. 640, 641—642, 50 S.E.2d 717; see State v. Matthews, 142 N.C. 621, 622—623, 55 S.E. 342. Ohio.—State v. Behimer, 20 Ohio St. 572, 576—582; State v.......
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State v. Britt, No. 9
...(1971); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955); State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954); State v. Correll, 229 N.C. 640, 50 S.E.2d 717 (1948), Cert. denied 336 U.S. 969, 69 S.Ct. 941, 93 L.Ed. 1120 (1949); State v. Howley, 220 N.C. 113, 16 S.E.2d 705 (1941). To ......
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State v. Williams, No. 41
...the jury, the argument and conduct of counsel being largely in the control and discretion of the presiding judge. State v. Correll, 229 N.C. 640, 50 S.E.2d 717. Ordinarily, exceptions to improper remarks of counsel during argument must be taken before verdict. State v. Hawley, 229 N.C. 167,......
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State v. Westbrook, No. 94
...evidence.' People v. Wein, 50 Cal.2d 383, Page 585 326 P.2d 457, cert. den., 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99. In State v. Correll, 229 N.C. 640, 50 S.E.2d 717, cert. den., 336 U.S. 969, 69 S.Ct. 941, 93 L.Ed. 1120, the epithet, 'a small-time racketeering gangster,' applied to the de......
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Green v. United States, No. 46
...v. Palmer, 109 N.Y. 413, 415—420, 17 N.E. 213; People v. McGrath, 202 N,.y. 445, 450—451, 96 N.E. 92. North Carolina.—State v. Correll, 229 N.C. 640, 641—642, 50 S.E.2d 717; see State v. Matthews, 142 N.C. 621, 622—623, 55 S.E. 342. Ohio.—State v. Behimer, 20 Ohio St. 572, 576—582; State v.......
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State v. Britt, No. 9
...(1971); State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424 (1955); State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954); State v. Correll, 229 N.C. 640, 50 S.E.2d 717 (1948), Cert. denied 336 U.S. 969, 69 S.Ct. 941, 93 L.Ed. 1120 (1949); State v. Howley, 220 N.C. 113, 16 S.E.2d 705 (1941). To ......
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State v. Williams, No. 41
...the jury, the argument and conduct of counsel being largely in the control and discretion of the presiding judge. State v. Correll, 229 N.C. 640, 50 S.E.2d 717. Ordinarily, exceptions to improper remarks of counsel during argument must be taken before verdict. State v. Hawley, 229 N.C. 167,......
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State v. Westbrook, No. 94
...evidence.' People v. Wein, 50 Cal.2d 383, Page 585 326 P.2d 457, cert. den., 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99. In State v. Correll, 229 N.C. 640, 50 S.E.2d 717, cert. den., 336 U.S. 969, 69 S.Ct. 941, 93 L.Ed. 1120, the epithet, 'a small-time racketeering gangster,' applied to the de......