State v. . Potter , 61 N.C. 338 ( 1867 )

The defendant pleaded autrefois convict and not guilty.

The case as made up by his Honor states that there was evidence that in the spring of 1865 the defendant and another went to the house of Sarah Hill, the prosecutrix, in the nighttime, and after threats and firing of guns, obtained admittance; that the defendant laid his hands on the prosecutrix and attempted to pull her out of the door; that he then went into the yard, where he stayed a short time, and then returned and burst open the door, and several times pointed a gun at the prosecutrix.

The above facts had been given in evidence on a similar indictment in the County Court of Lenoir, and the defendant introduced the following record from March Term, 1867, of that court: "State v. James Potter and Isaac Moyer. A. and B. The defendant James Potter comes into open court and submits. Judgment suspended upon payment of costs, and in custody of sheriff till costs are paid."

The statement of his Honor proceeds: "A verdict of guilty was rendered, subject to the opinion of the court."

"The solicitor insists that the evidence in this case establishes two assaults and batteries; that, as no judgment was pronounced in the county court, the record of that court in this trial is no protection against even a single assault. On motion of the defendant judgment is arrested, from which the solicitor prays an appeal which is granted." The record and case sent up by the judge is in such a shape that this Court can take no action on it, except to award a venire de novo.

We can see no ground for an arrest of judgment. That must be for some fatal defect apparent on the face of the record proper, as distinguished from what is set out in the postea, or case made up by the judge.

"A verdict of guilty was rendered, subject to the opinion of the court." This, we suppose, was intended to present the question on the plea of "former conviction," and yet the judge has given no opinion upon either of those questions; so we have nothing to act on, and the case must be sent back for another trial.

It seems the defendant pleaded "not guilty," and also pleaded "former conviction," which latter is a plea confessing and avoiding, and is manifestly inconsistent with the former plea. As the Statute of Ann, allowing more than one plea, does not apply to indictments, the defendant must put himself upon only one of the pleas, or the court should treat the latter plea as a waiver of the former, as was the case at common law in respect to a plea "since the last continuance" in civil suits.

PER CURIAM. Venire de novo.

Cited: S. v. Pollard, 83 N.C. 600; S. v. Craige, 89 N.C. 479; S. v.Bordeaux, 93 N.C. 563; S. v. Harrison, 104 N.C. 731; S. v. Ashford,120 N.C. 589; S. v. Furr, 121 N.C. 609; S. v. Taylor, 133 N.C. 757; S. v.Efird, 186 N.C. 483, 484.

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