Opinion
Filed 17 April, 1957.
Criminal Law 23 — A prosecution under an indictment void for failure to charge any criminal offense cannot bar prosecution upon a subsequent valid indictment.
APPEAL by defendant from Sharp, S. J., June 1956 Term of WAKE.
Attorney-General Patton and Assistant Attorney-General McGalliard for the State.
E. Reamuel Temple for defendant appellant.
A bill of indictment was returned at the December 1955 Term. It contained three counts charging the defendant with (1) breaking and entering, (2) larceny of sixty pounds of wieners of the value of $25, and (3) receiving sixty pounds of wieners of the value of $25, knowing them to have been stolen.
Defendant pleaded not guilty, with a further plea of former jeopardy. In support of his plea of former jeopardy, defendant relies on the record in the case of S. v. Strickland, heard at the July Term of Wake Superior Court, heard here on appeal at the Fall Term 1955 and reported 243 N.C. 100, 89 S.E.2d 781. During the trial, defendant moved to quash the indictment for inconsistency in the second and third counts. At the conclusion of the evidence the court sustained defendant's motion to nonsuit the third count. The jury returned a verdict of guilty on the charges of breaking and entering, and larceny. Judgment of imprisonment was imposed and defendant appealed.
Defendant's plea of former jeopardy has no merit. The bill of indictment returned in July 1955 charged no criminal offense. He is now, for the first time, charged with the criminal offense of which he stands convicted. S. v. Strickland, 243 N.C. 100, 89 S.E.2d 781. The motion to quash is without merit. S. v. Mincher, 178 N.C. 698, 100 S.E. 339. Defendant's other assignments of error have been examined and have been found to be equally wanting in merit.
No error.