State v. William
| Decision Date | 31 December 1836 |
| Citation | 19 N.C. 159 |
| Parties | THE STATE v. WILLIAM, T. TISDALE. |
| Court | North Carolina Supreme Court |
Where a bill of indictment for an assault and battery was found in the Superior Court against a person who was subsequently, but before being taken to answer the charge in the Superior Court, indicted and convicted in the County Court for the same offence, it was Held, that the County Court had jurisdiction of the case, notwithstanding the bill found in the Superior Court; and that to that bill he might plead his former conviction in the County Court.
The defendant was indicted in the Superior Court of the county of Nash, for an assault and battery, upon one Cullen Floyd; and at the last term of the said court, in September, he plead a "former conviction for the same offence, in the County Court of Nash, at its August Term, 1836;" to which the Attorney-General, for the state, replied, that before the prosecution commenced in the County Court, to wit, at the Spring Term, "1836, of the Superior Court, the present bill was found against the defendant, and that the prosecution had been since regularly kept up. To this replication the defendant rejoined, that he had no legal notice of the prosecution in the Superior Court, before his conviction in the County Court; and to this rejoinder the Attorney-General demurred. His Honor Judge Strange overruled the demurrer, and ordered the defendant to be discharged; whereupon the Attorney-General appealed.
RUFFIN, Chief Justice: It is not denied, on the part of the state, that a former conviction is generally a bar to another indictment for the same offence. But it is said, that it is not a bar, unless the court which gave the judgment had jurisdiction; and that in this case, the County Court had none, because it attached, upon the finding of the bill, in the Superior Court, and necessarily ousted that of the former court.
We do not accede to that inference: the finding of a bill does not confine the state to that single bill. Another may be preferred, and the party put to a trial on it, notwiststanding the first remains undetermined; for auter foits arraign is no plea, generally. Thus it undoubtedly is, when both bills are in the same court: a second bill therefore is not taken coram non judice so as to be a nullity; but the jurisdiction of the offence remains, independent of that to be exercised on the first bill. Then, how is this affected by the two bills being found in two courts having concurrent jurisdiction ? We think, that as respects the jurisdiction of the offence, the case is the same as if both prosecutions were in the same court. If, for instance, a bill were now to be found in the Superior Court—which might be, notwithstanding the former bill in that court—the defendant could plead to it his former conviction in the County Court, notwithstanding it took place hanging such first bill, on which no proceedings had been taken. The State may prefer a prosecution in any of her courts, which have jurisdiction, and may, in general, try the party on which she pleases. If two indictments be found in the same court, the course is to quash one before the party is put to plead on the other. If in different courts, neither court can be said to be ousted of its jurisdiction of the offence; though the defendant may have it in his power to abatethe latter bill by plea, that another court has cognizance of the case by a prior bill. It is like the case of a second civil action brought, pending a former; which is not matter of abatement of the first, but is a good plea of that kind in the second. Yet if it be not pleaded in abatement,...
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