State v. . McNeill , 10 N.C. 183 ( 1824 )

At the term of Cumberland Superior Court which commenced on 28 October, 1822, this bill of indictment was found against the defendant for the same offense, to which at Spring Term, 1823, he pleaded his apprehension by warrant, and the finding of the bill in the county court, to which the solicitor for the State replied the nolle prosequi, and defendant demurred.

Norwood, J., who presided, sustained the demurrer and gave judgment for the defendant, from which the State appealed. The Court is of opinion that a bill of indictment having been found against the defendant in the county court at December sessions in 1822, for the same offense, is no defense against (184) the present indictment in the Superior Court, inasmuch as it appears on the pleadings that a nolle prosequi had been entered on the said first indictment prior to the time of pleading in this. That as the effect of a nolle prosequi is to put the defendant, without day, upon that indictment, he becomes while he is so, amenable to another indictment in any court having jurisdiction of the offense; otherwise anolle prosequi would operate as a bar to any other prosecution. The power of issuing new process after a nolle prosequi cannot affect this question, because no process had been issued. The plea is, therefore, insufficient and must be overruled.

PER CURIAM. Reversed.

Cited: S. v. Tisdale, 19 N.C. 161; S. v. Casey, 44 N.C. 210; S. v.Respass, 85 N.C. 536.