State v. Drakeford

• Decision Date: 28 May 1913
• Citation: 78 S.E. 308,162 N.C. 667
• Parties: STATE v. DRAKEFORD.
• Court: North Carolina Supreme Court

78 S.E. 308

162 N.C. 667

STATE v. DRAKEFORD.

Supreme Court of North Carolina

May 28, 1913

Appeal from Superior Court, Richmond County; Bragaw, Judge.

Moses Drakeford was convicted of rape, and appeals. Affirmed.

The fact that one of the jurors who tried accused was on the grand jury which found the first bill against him, on which he was discharged, was not ground for reversal of a judgment of conviction, where such juror stated on his voir dire without contradiction, that he had not formed an opinion of accused's guilt or innocence.

D. J Cashwell, of Fayetteville, and J. R. McLendon, of Rockingham for appellant.

The Attorney General and T. H. Calvert, of Raleigh, for the State.

CLARK C.J.

The prisoner was indicted for rape upon "Lila" Hatcher. On the trial the evidence showed that it had been committed on "Liza" Hatcher. The prisoner's counsel insisting that the names were not idem sonans, and that there was a fatal variance between the charge and the proof, granted the motion of the prisoner and instructed the jury to find the defendant not guilty of rape upon ""Lila" Hatcher, but held him to appear at the next term of court to answer the charge of committing rape upon "Liza" Hatcher. This bill was so found, and when the prisoner was put upon trial his counsel pleaded "former jeopardy."

The court properly overruled the plea of former jeopardy. The names might well have been held idem sonans, or, at the most, an immaterial variance, and the former trial should have proceeded. State v. Lane, 80 N.C. 407; State v. Collins, 115 N.C. 716, 20 S.E. 452, and numerous instances there collected.

But the prisoner, having been discharged on the former trial at his own instance, cannot now avail himself of this defense. In 12 Cyc. 266, it is said: "Where the accused has secured a decision that an indictment is void, or has procured its being quashed, or has been granted an instruction based on its defective character, directing the jury to acquit, he is estopped when subsequently indicted to assert that the former indictment was valid"--citing U.S. v. Jones (C. C.) 31 F. 725; Joy v. State, 14 Ind. 139; State v. Meekins, 41 La. Ann. 543, 6 So. 822. On same page (12 Cyc. 266) it is further said: "If the accused is acquitted by the direction of the court on the ground of material variance, he cannot plead the acquittal as a bar, for he has never been in jeopardy, and, when tried on a new indictment, the crime then alleged is not the same as in former indictment. And it has been held that if the accused on the prior trial maintained that the variance was material and the court directed a verdict of acquittal on that ground, he cannot subsequently on his plea of former acquittal allege or prove that it was not material"--citing very many cases which sustain this proposition, among them State v. Birmingham, 44 N.C. 120; State v. Revels, 44 N.C. 200; State v. Sherrill, 82 N.C. 694. "Where a verdict of acquittal is directed at the request of defendant upon the ground that the indictment is fatally defective, he cannot, on being again prosecuted, claim that the former indictment was in fact good, and that he has been in jeopardy under it." 17 A. & E. (2d Ed.) 615, and cases there cited. Clark, Criminal Law, § 174, says that a defendant may waive his right to plead former jeopardy, either expressly or impliedly, in many cases, citing instances, and among them specifies "where he procures a verdict or judgment to be set aside on his motion in arrest or for a new trial." In 2 Russell, Crimes, 61, the same is held as to this same offense, citing numerous authorities. In 1 Archbold, Pleading (8th Ed.) 344, are many decisions to the same effect. Among the cases there cited are Com. v. Mortimer, 4 Va. 325, which holds that, where a prisoner is acquitted of burning the barn of Josiah Thompson, he cannot plead this acquittal in bar of indictment for burning the barn of Josias Thompson, the real owner, when the acquittal was on the ground that the name of the true owner was not set out properly on the first indictment.

While as we have said, the court on the first trial should have held that the names were idem sonans, or certainly should have...