State v. Stilley, 6921SC119
| Decision Date | 28 May 1969 |
| Docket Number | No. 6921SC119,6921SC119 |
| Citation | 4 N.C.App. 638,167 S.E.2d 529 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Leroy STILLEY. |
Atty. Gen. Robert Morgan, Asst. Atty. Gen., William W. Melvin and Staff Atty. T. Buie Costen, Raleigh, for the State.
Wilson & Morrow, by John F. Morrow, Winston-Salem, for defendant appellant.
The sole question presented by this appeal is whether the superior court erred in refusing to allow defendant's motion for dismissal on the ground of double jeopardy.
The record discloses that the case was called for trial in the Municipal Court of the City of Winston-Salem on 19 December 1967. After defendant pleaded not guilty, witnesses for the State were called and sworn and a police officer of the City of Winston-Salem proceeded to take the witness stand and testify. During the officer's direct examination by the solicitor, he testified that a breathalyzer test was administered to the defendant and started to relate the results of said test. At that point, counsel for defendant objected and the judge sustained the objection. Thereupon, the solicitor requested that the case be continued until the next day, which request was granted over objection of defense counsel. When the case was called for trial on the following day and witnesses for the State were again called and placed under oath, defense counsel made a motion to dismiss the charges on the ground of former jeopardy. On a hearing of the motion, defense counsel was allowed to examine witnesses for the State who testified to the effect that they were prepared and available to testify on the preceding day. The municipal court judge overruled defendant's motion and proceeded to hear and dispose of the case as above stated.
At the hearings on the motions in municipal court and superior court, defendant introduced in evidence a provision of the Code of the City of Winston-Salem which states:
Defendant contends that each day in the Municipal Court of Winston-Salem constituted a 'session' of the court and that he was subjected to double jeopardy when the court began his trial on one day and then proceeded to continue his case until the next day when trial was resumed and completed. Inasmuch as defendant Appealed to the superior court, we deem it unnecessary to pass upon the type or character of 'session' employed by the court in which defendant was tried initially.
The Municipal Court of the City of Winston-Salem was established by the 1927 Session of the General Assembly; see Article XV of chapter 232 of the 1927 private laws. No provision was made for jury trials in criminal cases in the court and section 88 provides that 'any person convicted in said court shall have the right of appeal to the Superior Court of Forsyth County, and upon such appeal the...
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State v. Coats
...have no application to the factual situation presented by the present appeal. We are advertent to the implications of State v. Stilley, 4 N.C.App. 638, 167 S.E.2d 529, and we disagree with its In Spencer the defendants were convicted in District Court and were sentenced to sixty days in jai......
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