State v. Smith
| Decision Date | 08 December 1915 |
| Docket Number | (No. 468.) |
| Citation | 87 S.E. 98,170 N.C. 742 |
| Parties | STATE. v. SMITH. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Montgomery County; Lane, Judge.
Malcolm, alias Make Smith, was convicted of murder in the second degree, and he appeals. No error.
W. A. Cochran, of Troy, for appellant.
T. W. Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gei»., for the State.
The defendant Malcolm Smith and one Charles Smith were indicted on separate bills of indictment, and also on a joint bill, at the January term, 1907, for the murder of one Milton Bunnell. This defendant, at the July term, 1915, was found guilty of murder in the second degree, and sentenced to a term of 18 years in the state prison. At the January term, 1907, this defendant was arraigned, and entered a plea of not guilty. At that term of courthis codefendant, Chas. Smith, was placed on trial and found guilty of murder in the second degree for the killing of Milton Bunnell, and was sentenced to a term of 30 years in the state prison. At the following September term, a nol. pros, with leave was entered as to the defendant Malcolm Smith, who was then discharged from prison without being required to give any bond or recognizance. In January, 1915, this defendant was arrested under capias, issued on the bill of indictment returned at the January term, 1907, and at July term, 1915, was placed on trial charged with the murder of Milton Bunnell. The solicitor, as he had a right to do, elected to try him for murder in the second degree.
The testimony of Charles Smith, who had been previously convicted, was offered by the state, and this testimony was corroborated by the testimony of Frank Page. It is sufficient to say that this testimony tended to prove that this defendant Malcolm Smith instigated his son Charles Smith to commit the murder.
At the commencement of the trial, and in apt time, counsel for defendant offered a plea in abatement, and moved the court to dismiss the prosecution, for the reason that the defendant had formerly been placed in jeopardy upon the bills for indictment returned by the grand jury at the January term, 1907. This motion was overruled by the court. It appears from the record that at January term, 1907, this defendant was arraigned and pleaded not guilty, and that at the following September term a nol. pros, with leave was entered, and the defendant discharged without bail. Charles Smith was placed" on trial and convicted at January term, 1907, but the record nowhere shows that any proceedings were taken or trial had as to this defendant after his plea of not guilty until the September term, 1907, when the nol. pros, with leave was entered. It nowhere appears that a jury was at any time sworn and impaneled to try him. The defendant excepts because the trial judge overruled his plea in abatement, and did not submit an issue to the jury upon the plea...
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