Opinion
(Filed 14 October, 1942.)
1. Criminal Law § 55 —
The ordering of a mistrial in a case less than capital is a matter of discretion.
2. Criminal Law § 19 —
Where defendant indicted for murder, solicitor's election to ask for a verdict for murder in the second degree or manslaughter, is equivalent to a nolle prosequi on the capital charge.
APPEAL by defendant from Harris, J., at May Term, 1942, of HARNETT. Appeal dismissed.
Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.
Neil McK. Salmon and C. L. Guy for defendant.
The defendant was indicted for murder. However, at the solicitor's election he was not put on trial for first degree murder but for murder in the second degree or manslaughter. This was equivalent to taking a nolle prosequi on the capital charge. S. v. Gregory, 203 N.C. 528, 166 S.E. 387. At the close of the State's evidence defendant's motion for judgment as of nonsuit was denied. The solicitor then moved to be permitted to offer additional testimony. This motion was allowed, and, it appearing that the evidence desired was not presently available, the court ordered a mistrial, and continued the case. The defendant excepted to the ruling of the trial judge, and appealed to this Court.
The ordering of a mistrial in a case less than capital is a matter in the discretion of the court. S. v. Johnson, 75 N.C. 123; S. v. Upton, 170 N.C. 769, 87 S.E. 328; S. v. Ellis, 200 N.C. 77, 156 S.E. 157; S. v. Guice, 201 N.C. 761, 161 S.E. 533; S. v. Watson, 209 N.C. 229, 183 S.E. 286. In capital cases only is the judge required to find the facts and place them on record so that upon a plea of former jeopardy the action of the court may be reviewed. S. v. Tyson, 138 N.C. 627, 50 S.E. 456; S. v. Beal, 199 N.C. 278 (295), 154 S.E. 604.
It is apparent that the appeal is premature and must be dismissed. S. v. Andrews, 166 N.C. 349, 81 S.E. 416; S. v. Ford, 168 N.C. 165, 83 S.E. 831.
Appeal dismissed.