State v. Midyette, 84
| Decision Date | 03 May 1967 |
| Docket Number | No. 84,84 |
| Citation | 270 N.C. 229,154 S.E.2d 66 |
| Parties | STATE, v. Donald Cleveland MIDYETTE. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.
Charles L. Abernethy, Jr., New Bern, for defendant appellant.
In his presentation of these appeals, the defendant has disregarded the rules of this Court in respects too numerous to mention. We have, nevertheless, considered each of his assignments of error and his contentions in his brief and oral argument.
The indictment in Craven County Case No. 7534 alleges that the offenses therein charged were committed in that county. It was, therefore, the proper venue for the trial thereof. G.S. § 15--134. The defendant contends in his brief that his trial and conviction in Craven County, following his trial and conviction in Pamlico County, was a violation of his constitutional right not to be put twice in jeopardy for the same offense. It is elementary that a continuous series of acts by a defendant, all occurring on the same date and as parts of one entire plan of action, may constitute two or more separate criminal offenses. State v. Overman, 269 N.C. 453, 153 S.E.2d 44. These may occur in different counties and the defendant may be tried for each in the county where it was committed. See State v. Bruce, 268 N.C. 174, 150 S.E.2d 216.
As to the Pamlico County judgment, the defendant makes 34 assignments of error, but the entire record contains only four exceptions, two with reference to the admission of evidence, which was competent, and two to the denial of the defendant's motions for judgment of nonsuit.
As to the contention in the defendant's brief that the trial judge should have continued the trial of the Pamlico County cases and ordered a psychiatric examination of the defendant, it is sufficient to note that there was no such request by the defendant and no evidence to show that, at the time of his tril, he lacked sufficient mental capacity to plead to the indictment or to stand trial on the charges therein. The record does not show a plea of insanity as a defense or any evidence to support such a plea. He was represented by counsel. The fact that, four years prior to the offense with which he is charged, the defendant had been a patient in a mental hospital does not require the court to order a psychiatric examination in the absence of a request therefor or of any plea of insanity.
The assignments of error relating to the court's charge in the Pamlico cases are not brought forward in the brief and supported therein by any citation of authority or argument. They are, therefore, deemed abandoned by the defendant. Rule 28, Rules of Practice in the Supreme Court. In this he was well advised for these assignments of error are without merit.
The defendant was convicted and sentenced in Pamlico County Case No. 483 for the crime of assault with a deadly weapon upon W. I. Robertson, on 25 June 1966, by shooting him with a .22 caliber pistol. He could not thereafter be lawfully indicted, convicted and sentenced a second time for that offense, or for any other offense of which it, in its entirety, is an essential element. State v. Birckhead, 256 N.C. 494, 497, 124 S.E.2d 838, 6 A.L.R.3rd 888.
By the allegations it elects to make in an indictment, the State may make one offense an essential element of another, though it is not inherently so, as where an indictment for murder charges that the murder was committed in the perpetration of a robbery. In such case, a showing that the defendant has been previously convicted, or...
To continue reading
Request your trial
-
State v. Belton
...v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); State v. Freeland, 316 N.C. 13, 340 S.E.2d 35; State v. Midyette, 270 N.C. 229, 154 S.E.2d 66 (1967). In Freeland we said: "The general rule is that the double jeopardy clause of the Federal Constitution protects an indi......
-
State v. Gardner
...or entering to be separate and distinct offenses. See State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982). In State v. Midyette, 270 N.C. 229, 154 S.E.2d 66 (1967), we recognized that when a person is acquitted of or convicted and sentenced for an offense, the prosecution is prohibited from......
-
State v. Cooper
...or a different Page 317 judge from conducting another hearing and reaching a different conclusion at a later date. See State v. Midyette, 270 N.C. 229, 154 S.E.2d 66. In this instance, there was ample expert medical testimony to support the trial court's finding that the defendant was compe......
-
Crocker v. Roethling
... ... there be no evidence to support the finding, or unless the judge abuse his discretion." State v. Moore, 245 N.C. 158, 164, 95 S.E.2d 548, 552 (1956). However, here, the pertinent inquiry is ... ...