Opinion
June Term, 1824.
A warrant issued to apprehend defendant, and on the 5th of October he was bound to appear at December term of the county court. On the 28 October a bill for the same offense was found against the defendant in the Superior Court, and when the defendant appeared in the county court in December a nolle prosequi was entered on the bill found against him at that term. It was held that as the effect of a nolle prosequi is to put the defendant, without day, upon the indictment to which it applies, he when in that situation becomes amenable on another indictment in any court having jurisdiction of the offense; otherwise a nol. pros. would amount to an acquittal.
ON 23 September, 1822, a warrant issued to apprehend the defendant, who was charged with having committed an assault and battery; on 5 October, 1822, he entered into recognizance before a justice of the peace to appear at December Term, 1822, of Cumberland County court and at that term a bill of indictment was found, on which a nolle prosequi was entered at the same term.
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 a nolle 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.