State v. Jordan, 437
| Citation | 247 N.C. 253,100 S.E.2d 497 |
| Decision Date | 26 November 1957 |
| Docket Number | No. 437,437 |
| Parties | STATE, v. Charles JORDAN. |
| Court | United States State Supreme Court of North Carolina |
Atty. Gen. George B. Patton and Asst. Atty. Gen. Claude L. Love for the State.
Taylor & Mitchell and George R. Greene, Raleigh, for defendant, appellant.
It appearing upon the face of the record that the bill of indictment is fatally defective, this Court, of its own motion, arrests the judgment. State v. Lucas, 244 N.C. 53, 92 S.E.2d 401, and cases cited.
The indictment charges that defendant escaped on January 9, 1957, from the State prison system, and that 'said prisoner (had) been previously convicted of escape.' No averment purports to answer any of these questions: Who had custody of defendant when the alleged escape on January 9, 1957, occurred? Was defendant then serving a sentence imposed upon conviction of a criminal offense? If so, by what court, and on what charge, had defendant been convicted and sentenced? Was the charge a misdemeanor or a felony? When, and in what court, was he convicted of the alleged prior escape? Did such conviction relate to an escape from the State prison system? When the prior escape occurred, was he then serving the same sentence as that for which he was in custody on January 9, 1957?
The bill of indictment purports to allege a criminal offense in violation of G.S. § 148-45, sec. 2, ch. 279, Session Laws of 1955. This statute provides (1) that 'any prisoner serving a sentence imposed upon conviction of a misdemeanor who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than three months nor more than one year'; (2) that 'any prisoner serving a sentence imposed upon conviction of a felony who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than two years'; and (3) that 'any prisoner convicted of escaping or attempting to escape from the State prison system who at any time subsequent to such conviction escapes or attempts to escape therefrom shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than three years.' (Italics added.)
True, a second escape is a felony, punishable by imprisonment for not less than six months nor more than three years, irrespective of whether the original sentence was imposed upon conviction of a misdemeanor or of a felony. Even so, whether the original sentence was imposed upon conviction of a misdemeanor or of a felony is a material fact; for the State might establish guilt for the presently alleged escape but fail, for deficiency in the indictment or the proof, to establish the alleged prior escape. Compare State v. Stone, 245 N.C. 42, 95 S.E.2d 77. In such case, the presently alleged escape would be a misdemeanor or a felony, thus materially affecting punishment, depending upon whether the sentence he was serving at the time of his escape was for a misdemeanor or a felony.
An indictment following substantially the language of the statute is sufficient only when it thereby charges the essential elements of the offense 'in a plain, intelligible, and explicit manner.' G.S. § 15-153; State v. Eason, 242 N.C. 59, 86 S. E.2d 774. If the statutory words fail to do this, they 'must be supplemented in the indictment by other allegations which explicity and accurately set forth every essential element of the offense with such exactitude as to leave no doubt in the minds...
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State v. Courtney
...to its validity, an indictment must allege every essential element of the criminal offense it purports to charge. State v. Jordan, 247 N.C. 253, 100 S.E.2d 497; State v. Greer, 238 N.C. 325, 77 S.E.2d 917, and cases cited; 27 Am.Jur., Indictments and Informations, Sec. 54; 42 C.J.S. Indictm......
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State v. Stokes, 248
...in several recent cases. State v. Walker, 249 N.C. 35, 105 S.E.2d 101; State v. Banks, 247 N.C. 745, 102 S.E.2d 245; State v. Jordan, 247 N.C. 253, 100 S.E.2d 497; State v. Helms, 247 N.C. 740, 102 S.E.2d 241; State v. Cox, 244 N.C. 57, 92 S.E.2d 413; State v. Strickland, 243 N.C. 100, 89 S......
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...in several recent cases. State v. Walker, 249 N.C. 35, 105 S.E.2d 101; State v. Banks, 247 N.C. 745, 102 S.E.2d 245; State v. Jordan, 247 N.C. 253, 100 S.E.2d 497; State v. Helms, supra; State v. Cox, 244 N.C. 57, 92 S.E.2d 413; State v. Nugent (Strickland), 243 N.C. 100, 89 S.E.2d 781; Sta......
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State v. Schalow
...93 S.Ct. at 1072–73, 35 L.Ed.2d at 433–34 ; State v. Whitley , 264 N.C. 742, 745, 142 S.E.2d 600, 603 (1965) (citing State v. Jordan , 247 N.C. 253, 256, 100 S.E.2d 497, 499 (1957) ). Thus, "[a] defendant is not subjected to double jeopardy when an insufficient indictment is quashed, and he......