State v. Allen , 279 N.C. 492 ( 1971 )

183 S.E.2d 659 (1971) 279 N.C. 492

STATE of North Carolina
v.
Jesse Everett ALLEN.

No. 59.

Supreme Court of North Carolina.

October 13, 1971.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. James F. Bullock, for the State.

T. Yates Dobson, Jr., Smithfield, for defendant-appellee.

SHARP, Justice.

This case presents an anomalous situation. Defendant objected to a question which the solicitor asked a State's witness. Defendant did not move for a mistrial or to quash the bill of indictment. Indeed, he made no motion whatever. Yet the judge, over the objection of both State and defendant, declared a mistrial and entered an order reciting that he had treated defendant's objection as a motion for mistrial and allowed the motion. Notwithstanding, the order of mistrial stands, albeit the record will not support the premise upon which it is based.

The State, anticipating that defendant will enter a plea of former jeopardy and move for his discharge upon the next trial, attempts to treat the order of mistrial as a quashing of the bill of indictment. However, this theory likewise finds no support in the record. The judge specifically stated he was continuing the case and not dismissing the indictment. Furthermore, a bill of indictment may be quashed only for want of jurisdiction, irregularity in the selection of the grand jury, or for a fatal defect appearing on the face of the indictment. State v. Mayo, 267 N.C. 415, 148 S.E.2d 257; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745.

However, on this record, no grounds for quashing the indictment appear. The court had jurisdiction; there is no suggestion that the grand jury was not properly constituted; and no defect appears upon the face of the indictment. A variance between the real name of the alleged victim and that given in the bill of indictment is not a defect appearing upon the face of the record, but one which would have to be established by evidence dehors. Cases in point are State v. Sawyer, 233 N. C. 76, 62 S.E.2d 515; State v. Gibson, 221 N.C. 252, 20 S.E.2d 51; and State v. Reynolds, 212 N.C. 37, 192 S.E. 871.

We have, then, an appeal by the State from an order of mistrial. The judgments from which the State can appeal are listed in G.S. § 15-179 (Supp.1969), and an order of mistrial is not included therein. Moreover, in a criminal case neither the State nor a defendant may appeal from an interlocutory order. State v. Bailey, 65 N.C. 426. "It is settled by a series of adjudications that no appeal lies in a criminal action until after the rendition of final judgment in the cause." State v. Twiggs, 90 N.C. 685, 686. In State v. Dove, 222 N.C. 162, 22 S.E.2d 231, the defendant appealed from an order of mistrial. This court said: "It is apparent that the appeal is premature and must be dismissed." Id. at 163, 22 S.E.2d at 232. This appeal must also be dismissed.

The remaining question debated in the briefs, whether upon a retrial defendant will be entitled to his release upon a plea of former jeopardy, does not arise upon this record.

Appeal dismissed.