State v. Smith
| Citation | 129 N.C. 546,40 S.E. 1 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 26 November 1901 |
| Parties | STATE v. SMITH. |
CRIMINAL LAW—NOL. PROS. WITH LEAVE— SUBSEQUENT ISSUANCE OF CAPIAS. Where the entry in a criminal case is, "Nolle prosequi with leave, " in accordance with the universal practice of the courts ot the state, it authorizes the clerk, at the request of the solicitor, to issue another capias.
Appeal from superior court, Burke county; Justice, Judge.
Joe Smith was convicted of assault with a deadly weapon, and appeals. Affirmed.
When the case was called for trial, the defendant moved for his discharge upon the ground that at May term, 1901, of the superior court a nol. pros, with leave was taken by the solicitor, the capias having been returned not executed; that there appears on the record no order directing the clerk to issue a capias; that no general order appears on record at said term directing the clerk to issue a capias for this or any other defendant against whom a nol. pros, with leave had been taken; that about three weeks before this term of court, the defendant having returned to the county, the solicitor, of his own motion, ordered the clerk to issue a capias for his arrest; that no motion had been made by the solicitor at this term that a capias should issue. Motion overruled, and defendant excepted. Defendant then moved for his discharge on the ground that the bill of indictment was found by a grand jury of the Western criminal district court. Motion overruled, and defendant excepted.
Self & Whitener, for appellant.
The Attorney General and Brown Shepherd, for the State.
At June term, 1899, of the Burke criminal court, the defendant was indicted for assault with a deadly weapon, from which term a capias was issued, but not executed. At the next two succeeding terms of said court the case was continued, and alias capiases ordered. This was the last term of the criminal court in that county, —the same having been abolished by the legislature, —and the case was transferred to the superior court for trial. At May term of the superior court a "nolle prosequi with leave" was taken; and after that term, and before the October term of said court, the clerk, at the request of the solicitor for that district, issued a capias returnable to said October term. Upon this capias the defendant was taken, and bound over to court, and at said October term he appeared, and moved to be discharged upon the ground that the solicitor had no right to order a capias to issue, and that he was wrongfully arrested. This motion was refused, and the...
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State v. Clayton
...offense, or fresh process may be issued against him upon the same indictment, and he be tried upon it. 6 Mod., 261; 1 Sal. 21.' S[tate]. v. Smith, 129 N.C. 546 ; S[tate]. v. Faggart, 170 N.C. 737 (744) ; Wilkinson v. Wilkinson, 159 N.C., 265 [74 S.E. 740, 39 L.R.A.,N.S., It seems clear that......
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Wilkerson v. Wilkerson
...issue a capias upon the same bill is given by the court in advance, instead of upon a special application made afterwards. State v. Smith, 129 N.C. 546, 40 S.E. 1. Referring to this kind of nol. pros., the court in State Smith, supra, said: "While we recognize the fact that the courts shoul......
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...be issued against him upon the same indictment, and he be tried upon it--[Goddard v. Smith] 6 Mod. 261; [Id.] 1 Sal. 21." State v. Smith, 129 N.C. 546, 40 S.E. 1; State v. Faggart, 170 N.C. 737, 87 S.E. Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740, 39 L. R. A. (N. S.) 1215. The court b......
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