State v. Hailey, 51 N.C. 42, 6 Jones 42 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 42, 6 Jones 42

STATE v. JOHN W. HAILEY.

A bill of indictment against a person by a wrong- name, which is pleaded to in abatement, and the plea found, is, nevertheless the same cause of action, and the elapse of two years is no bar to the prosecution.

Being against the same person, the words of the statute providing a saving of one year after the first prosecution shall have been abandoned, would have been a sufficient reply to the plea of the statute, even if there had been a bar.

Indictment for assault and battery tried before Saundees, J., at the last Fall Term of Anson Superior Court.

The defendant was indicted formerly under the name of “John W. Bailey,” and he pleaded in abatement that his name was not John W. Bailey, but “John W. Hailey,” which plea was admitted by the solicitor, and a new bill was sent and found by the grand jury; but from the time of the commission of the offence, to the finding of the latter bill, more than two years had elapsed, and the defendant insisted on that as a bar, but the solicitor replied the former bill of indictment and the question was, whether the pendency of that hill was a saving.

Ilis Honor was of opinion that it was not a saving, and gave judgment for the defendant, from which Mr. Solicitor Strange appealed.

Attorney General, for the State.

Dargan and Kelly, for the defendant.

Phaesobt, C. J.

Without reference to the proviso, we are of opinion that the proceeding against the defendant was within the time prescribed by the statute, (Rev. Code, ch. 35, sec. 8.) The first bill was found within two years after the commission of the offense; the second bill was a continuation, and a part of the same proceeding, according to a well settled principle; State v. Johnston, 5 Jones’ Rep. 221; State v. Haney, 2 Dev. and Bat. 390; State v. Tisdale, ibid 159; State v. Harshaw, 2 C. L. Rep. 257.

If the solicitor had entered a nol.pros. and discharged the defendant, and then sent the second bill, as it was found within one year thereafter, the case would have come within the proviso; for it can make no difference whether the judgment on the first indictment is arrested, or the prosecution fails for some other cause, provided both indictments are for the same offense and against the same person, the words of the statute being “within one year after the first (prosecution) shall have been abandoned by the State,” which are broad enough to include any cause by reason of which the first indictment is not prosecuted to judgment.

There is a similar proviso in reference to the time for bringing civil actions, in case judgment is arrested, or is reversed for error; Rev. Code, ch. 65, sec. 8, and the uniform and settled construction extends to cases where a nonsuit is entered.

There is error. This opinion will be certified, to the end, that the judgment in the Court below may be reversed, and a judgment entered for the State upon the verdict.

Pee Cubiam, Judgment reversed.