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410 IN THE COURT OF APPEALS [ 17
State v. Coats
pidity with which the assistant solicitor sought, and the District
Court judge allowed, the complete termination of defendant's
trial on 16 November 1972 and the retrail of defendant on 30
November 1972, we feel that it should be stated that we agree
with Judge Braswell's conclusion that jeopardy attached on 16
November 1972, and that under the facts of this case defendant
was twice put in jeopardy for the same offense when he was
again called to answer to the same charge on 30 November 1972.
This complete termination of the tria! and retrial over defend-ant's
objection is a far cry from a brief recess in the trial, or
from a mistrial ordered upon appropriate grounds.
The State does have a right to appeal when judgment has
been given for a defendant upon declaring a statute unconstitu-tional.
G.S. 15-179 (6). Under the procedure and theory followed
in the Superior Court, the judgment was given for defendant
only after G.S. 15-177.1 was declared "unconstitutional as it re-lates
to the facts of this particular case." It is upon this right
that the State bases its appeal.
Defense counsel, the State, and the Superior Court judge
all seem to have agreed that G.S. 15-177.1 prevented defendant
from asserting in Superior Court, on appeal, a plea of former
jeopardy for having been twice put in jeopardy in District Court.
For the reasons hereinafter stated, we are of the opinion that
G.S. 15-177.1 presents no impediment to the consideration by
the Superior Court upon appeal for a trial de novo of defend-ant's
plea in bar for having been twice put in jeopardy in the
District Court.
As we understand the theory which prevailed in the Su-perior
Court in this case, the following could occur:
A defendant could be tried, convicted and sentenced in Dis-trict
Court. Over his plea of former jeopardy, he again
could be tried, convicted and sentenced in District Court
upon the same charge. If he then appealed to the Superior
Court from this second conviction, the trial de novo pro-vision
of the statute (G.S. 15-177.1) would prevent the Su-perior
Court from considering his plea of former jeopardy.
This, of course, the statute does not do. It provides as fol-lows
:
"In all cases of appeal to the superior court in a crimi-nal
action from a justice of the peace or other inferior
Object Description
| Title | North Carolina Court of Appeals Reports [v.017, Fall Session Session 1972 - Spring Session 1973] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1973 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 17, Fall Session Session 1972 - Spring Session 1973. Cited as 17 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 36.1 MB; 820 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_017.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 434 |
| Full Text | 410 IN THE COURT OF APPEALS [ 17 State v. Coats pidity with which the assistant solicitor sought, and the District Court judge allowed, the complete termination of defendant's trial on 16 November 1972 and the retrail of defendant on 30 November 1972, we feel that it should be stated that we agree with Judge Braswell's conclusion that jeopardy attached on 16 November 1972, and that under the facts of this case defendant was twice put in jeopardy for the same offense when he was again called to answer to the same charge on 30 November 1972. This complete termination of the tria! and retrial over defend-ant's objection is a far cry from a brief recess in the trial, or from a mistrial ordered upon appropriate grounds. The State does have a right to appeal when judgment has been given for a defendant upon declaring a statute unconstitu-tional. G.S. 15-179 (6). Under the procedure and theory followed in the Superior Court, the judgment was given for defendant only after G.S. 15-177.1 was declared "unconstitutional as it re-lates to the facts of this particular case." It is upon this right that the State bases its appeal. Defense counsel, the State, and the Superior Court judge all seem to have agreed that G.S. 15-177.1 prevented defendant from asserting in Superior Court, on appeal, a plea of former jeopardy for having been twice put in jeopardy in District Court. For the reasons hereinafter stated, we are of the opinion that G.S. 15-177.1 presents no impediment to the consideration by the Superior Court upon appeal for a trial de novo of defend-ant's plea in bar for having been twice put in jeopardy in the District Court. As we understand the theory which prevailed in the Su-perior Court in this case, the following could occur: A defendant could be tried, convicted and sentenced in Dis-trict Court. Over his plea of former jeopardy, he again could be tried, convicted and sentenced in District Court upon the same charge. If he then appealed to the Superior Court from this second conviction, the trial de novo pro-vision of the statute (G.S. 15-177.1) would prevent the Su-perior Court from considering his plea of former jeopardy. This, of course, the statute does not do. It provides as fol-lows : "In all cases of appeal to the superior court in a crimi-nal action from a justice of the peace or other inferior |
