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State v. Hopkins , 279 N.C. 473 ( 1971 )


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  • 183 S.E.2d 657 (1971)
    279 N.C. 473

    STATE of North Carolina
    v.
    Ronald E. HOPKINS.

    No. 51.

    Supreme Court of North Carolina.

    October 13, 1971.

    *658 Atty. Gen. Robert Morgan and Staff Atty. Richard N. League, Raleigh, for the State.

    *659 Wilkinson & Vosburgh, by James R. Vosburgh, Washington, for defendant.

    LAKE, Justice.

    The constitutional right not to be placed in jeopardy twice for the same offense, like other constitutional rights, may be waived by the defendant and such waiver is usually implied from his action or inaction when brought to trial in the subsequent proceeding. Harris v. United States, 8 Cir., 237 F.2d 274; Brady v. United States, 10 Cir., 24 F.2d 405; 22 C.J.S. Criminal Law § 277. In State v. Gainey, 265 N.C. 437, 144 S.E.2d 249, speaking through Chief Justice Denny, this Court said: "A subsequent plea of guilty constitutes a waiver of the plea of former jeopardy. 14 Am.Jur., Criminal Law, § 280, page 958." The Supreme Court of Kansas said in Cox v. State, 197 Kan. 395, 416 P.2d 741, 747, "Even if double jeopardy is raised as a defense it is abandoned by a subsequent plea of guilty." In Berg v. United States, 176 F.2d 122, cert. den. 338 U.S. 876, 70 S.Ct. 137, 94 L.Ed. 537, the Court of Appeals for the Ninth Circuit said, "Double jeopardy is a personal defense and is waived by plea of guilty." See also, 22 C.J.S. Criminal Law § 277.

    The present defendant, through his then privately employed counsel, entered a plea of guilty to the charge of nonfelonious breaking and entering after his previously entered plea of former jeopardy was overruled. He having thereby waived his right, if any, to dismissal of the charge on the ground of former jeopardy, it is not necessary for us to determine whether the Court of Appeals was correct in holding that the evidence offered by him, in the superior court, in support of his plea of former jeopardy, was incompetent for the reason that parol testimony is not admissible to establish, explain or contradict a judgment of a court of record, i. e., the district court. For the same reason it is not necessary for us to determine whether the evidence, if admissible, would be sufficient to show that by the proceeding in the superior court he was unlawfully placed in jeopardy a second time for the same offense. We therefore, express no opinion on either of those questions.

    No error.