State v. Pollard
| Decision Date | 30 June 1880 |
| Citation | 83 N.C. 597 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ELIAS POLLARD and another. |
OPINION TEXT STARTS HERE
INDICTMENT for killing live stock tried at Spring Term, 1880, of PITT Superior Court, before Avery, J.
The defendant appealed from the ruling of the judge below.
Attorney General, for the State .
Messrs. Latham & Skinner, for defendant .
The defendant is charged with killing certain live stock, running at large in the range, in violation of the act of 1850, (Bat. Rev., ch. 32, § 94,) and upon his arraignment with others in the inferior court of Pitt, pleaded a former acquittal and not guilty. The issue upon the first plea was submitted to the jury and that upon second reserved by consent, and the jury rendered a special verdict. The court was of opinion, and so decided, that the facts found were insufficient to sustain the defence, and without further proceeding the defendant appealed to the superior court. His Honor affirmed the ruling of the inferior court and ordered his judgment to be certified to the end that the said court proceed with the cause and the defendant appealed to this court.
The inferior court, after its decision against the defendant upon the first plea, should have at once proceeded to im panel another jury to pass upon the other plea of not guilty. In England this is allowed only in trials for felony, and in misdemeanors the one verdict is conclusive, and the court proceeds to final judgment unless perhaps in particular cases it may be relaxed. But in this country no distinction is made in this particular between felonies and misdemeanors, and in all offences the defendant failing in his plea of former conviction or acquittal, is entitled to a trial of his plea of ““not guilty.” 1 Whar. Cr. Law, § 572. We propose to refer to a few adjudications on this point:
In Hirn v. Ohio, 1 Ohio, 15, the defendant being charged with selling spirituous liquors by the small measure, pleaded a license, to which the state demurred, and the demurrer was sustained. The court of common pleas thereupon proceeded to judgment. The appellate court, reviewing this action says:
In Commonwealth v. Goddard, 13 Mass., 455, the indictment was for an assault and battery, and the defendant pleaded a former conviction, to which there was put in a demurrer, and PARKER, C. J., delivering the opinion, lays down the rule thus: “When the plea is found against the defendant in this country, he will be put to plead again to the indictment, and the trial will proceed as if no previous proceeding had passed.”
In Barge v. Commonwealth, 3 Penn., and Watts (Penn.) 262, the defendant pleaded an acquittal and not guilty to an indictment for a misdemeanor, and GIBSON, C. J., uses this significant and forcible language: “The same justice, not to say humanity, which originally dictated a judgment of respondeat ouster in felony, dictates the same judgment in cases of misdemeanor where the defendant's special plea in bar has been determined against him on matter of law, and the case ought therefore to have been put to the jury on the plea of “not guilty.”
The same eminent judge in a similar case, referring to the English practice which ordinarily, as Mr. CHITTY...
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State v. Ellis
...v. White, 146 N.C. 608, 60 S.E. 505; State v. Taylor, 133 N.C. 755, 46 S.E. 5; State v. Winchester, 113 N.C. 641, 18 S.E. 657; State v. Pollard, 83 N.C. 597; 8 R. C. L. 119. the confusion in the record relative to the time and manner in which the defendant entered her pleas is not regarded ......
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State v. Davis
...allowed to stand, it bars the prosecution. If answered in the negative, the defendant may preserve his exception, if so advised. State v. Pollard, 83 N.C. 597. When the plea is not sustained, the prosecution then begins unaffected by the interlocutory inquiry in respect of the former action......
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State v. Taylor
... ... as upon a demurrer by the state, from which an appeal could ... be taken. The confusion in the record arises from the failure ... to observe the procedure pointed out by this court in several ... cases. Smith, C.J., in State v. Pollard, 83 N.C ... 597, discusses the authorities, and says: "It is true, ... double pleading is allowed only in civil cases under the ... statute of Anne, as was said by Pearson, C.J., in State ... v. Potter, 61 N.C. 338, and the jury could not be ... impaneled to try at one time more than the ... ...
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State v. Ellsworth
...85 N.C. 534. It is held an "interlocutory plea," and that no appeal lays for defendant therefrom, but he can note his exception. State v. Pollard, 83 N.C. 597. When the plea former conviction or former acquittal is not sustained, then the criminal trial begins, unaffected by the interlocuto......