State v. Wiley , 6 N.C. App. 193 ( 1969 )

Britt, J.

The sole question presented on this appeal is did the trial judge err in overruling defendant’s plea in bar. The answer is no.

The only evidence offered by defendant in support of his plea was testimony given by him personally. He testified that he and his wife had considerable trouble in 1964 but that there were only two court cases arising from their difficulties; that he had served or was in process of serving the sentences imposed in both cases. The State contended and introduced court records showing that three warrants charging assault on a female had been issued against the defendant; that he had been tried, convicted, sentenced and committed on two of the warrants and the present case is based on the third one. The trial judge found facts in accordance with the State’s contentions.

While no person may be twice put in jeopardy for the same offense, the burden is upon defendant to prove his plea of former jeopardy and show that the prior prosecution was for the same offense, both in law and in fact. 2 Strong, N.C. Index 2d, Criminal Law, § 26, p. 516. Defendant’s plea in this case raised a question of fact and law for the trial judge to determine. State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424. The conclusion reached by the court is fully supported by the findings of fact, and it is well settled that the findings of fact by the trial judge are binding upon the appellate courts of this State if supported by evidence. State v. Wright, 274 N.C. 380, 163 S.E. 2d 897, and cases therein cited. The findings of fact are fully supported by the evidence.

No error.

BROCK and YaughN, JJ., concur.