State v. England
| Decision Date | 31 January 1878 |
| Citation | 78 N.C. 552 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. W. S. ENGLAND. |
OPINION TEXT STARTS HERE
INDICTMENT for Burning a Stable, tried at August Special Term, 1877, of BURKE Superior Court, before Schenck, J.
After the jury were impannelled, the Solicitor for the State discovered that the bill of indictment was defective, and moved the Court to withdraw a juror and order a mistrial, insisting that as the offence charged was a misdemeanor, and as the defendant upon conviction would have a right to have judgment arrested, the Court should allow the motion. His Honor being of the same opinion, withdrew a juror and a mistrial was entered. A new indictment was thereupon preferred against the defendant upon which he was tried. On this trial the defendant objected to the admissibility of certain evidence, which sufficiently appears in the opinion of Mr. Justice BYNUM. Verdict of Guilty. Judgment. Appeal by the defendant.
Attorney General, for the State .
Mr. A. C. Avery, for the defendant .
The principle is admitted that no person shall be subject for the same offence to be twice put in jeopardy of life or limb, and upon the same principle no man shall be placed in peril of any legal penalties more than once upon the same accusation for any criminal offence whatever. But there is no jeopardy and no peril where the indictment upon which he has been charged is defective. 4 Coke, 44; Whar. Cr. Law, §§ 587,588.
The prisoner in our case was put upon his trial, and the jury impannelled and charged with his case, when upon the suggestion of the prosecuting officer that the indictment was defective, a juror was withdrawn by direction of the Court and a mistrial had, and the prisoner was afterwards tried and convicted upon another indictment for the same offence. If, therefore, the first indictment was so defective that no judgment could have been pronounced upon the prisoner in case of his conviction, it was proper to put him upon his trial upon another and sufficient indictment. We think the first indictment was insufficient. It was founded upon one of two statutes, the Act of 1868, or the Act of 1874-'75. If the first indictment was under the Act of 1874-'75, ch. 228, it was insufficient, because it did not allege the burning to have been done with an ““intent to injure or defraud” specified in the Act as a material part of the offence. If it was framed under the Act of 1868-'69, Bat. Rev. ch. 32, § 6, it was defective, because it did not charge the burning to have been in the “night time,” which fact it was necessary to charge and prove. The indictment was therefore bad, and it was not error to make a mistrial, and send another bill.
A more serious question is raised upon an exception to evidence upon the trial. It was in proof by the State that a bad feeling existed between the prosecutrix and Joseph England, a brother of the...
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State v. Moseley
...to prove the guilt of defendant by establishing the innocence of others originally suspected of the crime, relying on State v. England, 78 N.C. 552 (1878). We find no merit in this Special Agent Budzynski was qualified as an expert in DNA analysis by the State and testified that DNA tests w......
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State v. Stanfield
...Webber but later released them when the district court found no probable cause for their arrest. Defendants maintain that State v. England, 78 N.C. 552 (1878), is controlling and that it requires a new trial. In that case the defendant was charged with burning a stable. From the State's evi......
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State v. Pierce
...under subsection 2, were expressly sustained in the two cases last cited, and its validity has also been directly recognized in State v. England, 78 N. C. 552, and State v. Wright, 89 N. C. 507. Indeed, the doctrine is well settled that where the statute either makes an act unlawful, or imp......
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State v. Marsh
...the prisoner has not been in jeopardy, he may still be put to trial upon a proper bill. State v. Lee, 114 N.C. 844, 19 S.E. 375; State v. England, 78 N.C. 552, other cases collected in Wharton, Cr. Pl. & Prac. (9th Ed.) §§ 507, 457. Judgment arrested. ...