{ "id": 8561807, "name": "STATE OF NORTH CAROLINA v. JAMES WEAVER CASE, JR.", "name_abbreviation": "State v. Case", "decision_date": "1966-10-19", "docket_number": "", "first_page": "330", "last_page": "335", "citations": [ { "type": "official", "cite": "268 N.C. 330" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "80 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627279 ], "opinion_index": 0, "case_paths": [ "/nc/239/0446-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "opinion_index": 0, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "96 N.E. 92", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1961, "pin_cites": [ { "page": "95" } ], "opinion_index": 0 }, { "cite": "202 N.Y. 445", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 4491044, 1198924 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ny/202/0445-01", "/ny-crim/26/0356-01" ] }, { "cite": "164 La. 329", "category": "reporters:state", "reporter": "La.", "case_ids": [ 1259156 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/la/164/0329-01" ] }, { "cite": "70 N.Y.S. 2d 513", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1961, "opinion_index": 0 }, { "cite": "272 App. Div. 181", "category": "reporters:state", "reporter": "A.D.", "year": 1961, "opinion_index": 0 }, { "cite": "97 L. Ed. 469", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "73 Sup. Ct. 437", "category": "reporters:federal", "reporter": "S. Ct.", "pin_cites": [ { "page": "439" } ], "opinion_index": 0 }, { "cite": "344 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300626 ], "pin_cites": [ { "page": "491-493" } ], "opinion_index": 0, "case_paths": [ "/us/344/0443-01" ] }, { "cite": "136 S.E. 2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565344 ], "opinion_index": 0, "case_paths": [ "/nc/262/0052-01" ] }, { "cite": "142 S.E. 2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575038 ], "opinion_index": 0, "case_paths": [ "/nc/264/0716-01" ] }, { "cite": "144 S.E. 2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575611 ], "opinion_index": 0, "case_paths": [ "/nc/265/0437-01" ] }, { "cite": "145 S.E. 2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 45", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559563 ], "opinion_index": 0, "case_paths": [ "/nc/266/0045-01" ] } ], "analysis": { "cardinality": 660, "char_count": 13105, "ocr_confidence": 0.582, "pagerank": { "raw": 2.3474311183997465e-07, "percentile": 0.7928730593945824 }, "sha256": "fbce555b9c10fb26c3c223733b723279b2e36166d2891c0eb17f07cf4cf02d5f", "simhash": "1:bcfd68d19216a8fb", "word_count": 2228 }, "last_updated": "2023-07-14T16:01:58.333486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES WEAVER CASE, JR." ], "opinions": [ { "text": "Sharp, J.\nWhen, in either a post-conviction hearing or a habeas corpus proceeding, at the prisoner\u2019s request, the court vacates a judgment against him and directs a new trial, the prisoner waives his constitutional protection against double jeopardy, and he may be tried anew on the same indictment for the same offense. In such case, a plea of former jeopardy will avail him nothing. State v. Hollars, 266 N.C. 45, 145 S.E. 2d 309; State v. Gainey, 265 N.C. 437, 144 S.E. 2d 249; State v. Merritt, 264 N.C. 716, 142 S.E. 2d 687; State v. White, 262 N.C. 52, 136 S.E. 2d 205. In this case, however, the new trial was not granted at defendant\u2019s request; on the contrary, it was ordered and conducted over his protest. It is quite clear that in his second petition defendant based his claim to relief upon the ground that the indictments upon which he had been tried were fatally defective and that the judgment against him was void because the court lacked jurisdiction. This time he made no attack upon the constitutionality of his trial, or \u2014 if he did \u2014 the record does not disclose it, and there was no amendment to the petition. In other words, here defendant sought to use the writ of habeas corpus for the purpose for which it was originally designed. 25 Am. Jur., Habeas Corpus \u00a7 2 (1940). No doubt defendant had concluded that a new trial in each case \u2014 as subsequent events proved- \u2014 would be a Pyrrhic victory. State v. Gainey, supra; State v. White, supra. In the three cases in which defendant had received one sentence of only 18-24 months, he was charged with six felonies for which the law would permit a total maximum punishment of sixty years.\nIn his brief, counsel for defendant states that at his trial before Judge Campbell in 1965, defendant \u201chad ample time to confer and did confer with his counsel.\u201d If, however, we assume the truth of defendant\u2019s allegations in his first petition, the only relief to which defendant was entitled under the facts averred was a new trial. Upon the allegations contained in the second petition, defendant was entitled to no relief whatever. Yet, after having dismissed the first petition, thirty days later \u2014 upon the second petition \u2014 the court vacated the sentence and ordered a new trial, which defendant had not requested. When this occurred, defendant, without the assistance of his counsel, filed with us a handprinted, artlessly drawn petition for certiorari in which he asked us to reverse this order. His petition featured his fatuous contentions that he was entitled to immediate release. In consequence, we inadvertently overlooked his second contention that the court had erred in ordering a new trial over his protest. However, as Mr. Justice Frankfurter said in Daniels v. Allen, 344 U.S. 443, 491-493, 73 Sup. Ct. 437, 439, 97 L. Ed. 469, 507-508:\n\u201cThe denial of a writ of certiorari imports no expression of opinion upon the merits of the case. . . . These petitions for certiorari (habeas corpus proceedings) are rarely drawn by lawyers; some are almost unintelligible and certainly do not present a clear statement of issues necessary for our understanding, in view of the pressure of the Court\u2019s work.\u201d\nWithout doubt, it was our denial of certiorari that caused Judge Falls to overrule defendant\u2019s plea of double jeopardy.\nHad defendant secured a new trial upon his first petition, he would have voluntarily placed himself again in jeopardy and thereby would have waived the constitutional guaranty against double jeopardy. An accused, however, will be protected from a subsequent prosecution for the same offense where a valid judgment is set aside by the court on its own motion or upon application of the prosecuting attorney \u2014 unless, of course, the accused acquiesces in the action. People ex rel Ostwald v. Craver, 272 App. Div. 181, 70 N.Y.S. 2d 513; State v. Oglesby, 164 La. 329, 113 So. 865; People v. McGrath, 202 N.Y. 445, 96 N.E. 92; 22 C.J.S., Criminal Law \u00a7 271 (1961).\nIn People v. McGrath, supra, the defendant, charged with murder in the first degree, was convicted of murder in the second degree. Immediately upon making a motion to set aside the verdict on the ground that it was against the weight of the evidence, counsel for defendant attempted to withdraw the motion before the judge ruled upon it. The judge, being of the opinion that defendant should have been convicted of murder in the first degree, refused to permit counsel to withdraw the motion and allowed it instead. Defendant excepted. When the case came on for trial a second time, defendant entered a plea of autrefois convict. The plea was overruled. Defendant was convicted of murder in the first degree and judgment of death pronounced. Upon appeal, the Court of Appeals of New York held the second trial invalid, vacated the death sentence, and remanded the case to the Supreme Court of New York County with directions \u201cto proceed and pronounce judgment against the defendant upon the previous conviction of murder in the second degree.\u201d In doing so, the court said:\n\u201cIn a criminal case, it is only where the accused has brought about the destruction of the first verdict that he can again be put upon trial for the same offense. This defendant seasonably abandoned his attempt to destroy the verdict which has pronounced him guilty of murder in the second degree. A new trial could not lawfully be forced upon him after such abandonment.\u201d Id. 202 N.Y. at 455, 96 N.E. at 95.\nAs the record in this case comes to us, it seems that defendant had a new trial forced upon him. In the petition for habeas corpus upon which Judge Martin acted, defendant sought only his release; he alleged no grounds for a new trial. If not entitled to the relief sought, he wanted no other, for he had no intention of risking a longer sentence in a new trial. Under these circumstances, Judge Martin had no authority to vacate the 1965 sentence and to order a new trial, and his order purporting to do so is void.\nThe second trial, therefore, violated defendant\u2019s constitutional guaranty against being twice put in jeopardy for the same offense and was a nullity. N. C. Const., Art I, \u00a7 17; State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838; State v. Crocker, 239 N.C. 446, 80 S.E. 2d 243. His plea of former jeopardy should have been allowed. The judgment of 3-5 years pronounced at the February 1966 Session in Case No. 65-100 is vacated, and this case is remanded to the Superior Court of Buncombe County with instructions to reinstate the sentence of 18-24 months imposed at the April 1965 Session in cases numbered 65-99, 65-100, and 65-100A to the end that defendant may complete the unserved portion of it. The records of the Prison Department disclose that at the time Judge Martin purported to vacate defendant\u2019s 18-24 months\u2019 sentence he had served only five months and fifteen days of it.\nIt was suggested upon the oral argument that defendant did, in fact, request Judge Martin to order a new trial after he had denied defendant\u2019s petition for his immediate release. The record, however, does not bear this out. It imports verity and we are bound by it. 1 Strong, N. C. Index, Appeal and Error \u00a7 35 (1957). In any event, however, this case demonstrates the necessity that, in all post-conviction hearings, the record clearly show defendant\u2019s consent to the order awarding him a new trial. If he asks for a new trial in his petition or alleges facts which, if true, would entitle him to nothing else, he gives consent, which continues unless the court permits him to withdraw the petition. G.S. 15-220. If, during the hearing upon the petition, defendant should assign grounds for relief which he had not alleged, and these grounds are considered, the petition should be amended to show that they were. G.S. 15-218. In no other way can the integrity of post conviction hearings and the trials which they challenge be maintained.\nReversed and remanded.", "type": "majority", "author": "Sharp, J." } ], "attorneys": [ "T. W. Bruton, Attorney General, Ralph Moody, Deputy Attorney General, and Andrew A. Vanore, Jr., Staff Attorney, for the State...", "Melvin K. Elias for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES WEAVER CASE, JR.\n(Filed 19 October, 1966.)\n1. Habeas Corpus \u00a7 4; Criminal Law \u00a7 149\u2014\nTbe denial of certiorari in a Habeas corpus proceeding imports no expression of opinion upon the merits.\n2. Criminal Law \u00a7\u00a7 26, 122, 178; Habeas Corpus \u00a7 2\u2014 Plea of former jeopardy is valid upon second trial ordered over defendant\u2019s objection.\nWhere defendant files a petition in habeas corpus attacking the validity of the indictments under which he had been convicted (even though on feckless grounds) and does not seek to set aside the verdict or allege facts pertinent to the granting of a new trial, the court is without authority to force a new trial upon him over his objection, and upon appeal from denial of defendant\u2019s plea of former jeopardy, the cause will be remanded with instructions to reinstate the prior sentence to the end that defendant may complete the unexpired portion of it, Constitution of North Carolina Art. I, \u00a7 17.\n3. Criminal Law \u00a7 151\u2014\nThe record imports verity and the Supreme Court is bound thereby.\nAppeal by defendant from Falls, J., February 7, 1966 Session of BlJN combe.\nAt the February 1965 Session, in cases numbered 65-99, 65-100, and 65-100A, defendant was indicted in three separate bills, each charging him with forging and uttering a specific check. When these cases were called for trial at the April 1965 Session before Campbell, J., defendant, through his court-appointed counsel, Melvin K. Elias, entered a plea of guilty to the charges contained in each indictment. The cases were consolidated for judgment and defendant was sentenced to a term of 18-24 months in the State\u2019s Prison. Thereafter, without advising Mr. Elias of his intentions, defendant, in propria persona, filed a paper writing which he labeled \u201cPetition for Issuance of Writ of Review in Forma Pauperis Under N. C. General Statutes 15-217 through 15-222.\u201d This petition was mainly a collection of the assorted phrases which have become a part of prison vernacular \u2014 and which the inmates hope will have the magical effect of open sesame- \u2014 but it also contained an allegation that defendant first saw his attorney, Mr. Elias, at the time his case was called for trial. Defendant\u2019s prayer for relief was that he be given an opportunity to prove that \u201chis trial was both unfair and unconstitutional.\u201d He did not specifically request either that he be granted a new trial or that he be released from imprisonment.\nOn September 27, 1965, Martin, J., \u201cafter considering said petition and the record in this case,\u201d found that defendant\u2019s plea of guilty was voluntarily made with full knowledge of its possible consequences, and dismissed his petition. Defendant was not present and was not represented by counsel at the time the judge considered and dismissed his petition. Almost immediately thereafter, defendant wrote out a \u201cPetition for Writ of Habeas Corpus\u201d in which he alleged that the indictments upon which he had been tried were illegal because they (1) were not numbered, (2) failed to cite the section number of the statute he was alleged to have violated, and (3) failed to allege \u201cany facts or circumstances concerning any statutes of law.\u201d His prayer for relief was that he be released from \u201cillegal imprisonment.\u201d This petition also came on to be heard before Judge Martin, who reappointed Mr. Elias to represent defendant. Judge Martin treated the second petition as also having been filed under G.S. 15-217 et seq. On October 29, 1965, Judge Martin vacated the judgment that defendant be imprisoned for 18-24 months and ordered a new trial in each of the three cases upon the ground that defendant had not had the timely assistance of counsel at the preliminary hearing before the magistrate \u2014 an averment not contained in the petition for habeas corpus. Within the time permitted by G.S. 15-222, defendant, again in propria persona, petitioned this Court for certiorari to review the order of October 29, 1965. He alleged that the judge erred (1) in not ordering his release upon the grounds set out in the petition and (2) in ordering a new trial when he sought only his discharge from imprisonment. On November 9, 1965, we denied certiorari.\nOn February 8, 1966, the solicitor put defendant on trial again in Case No. 65-100. Before the jury was impaneled, defendant objected to a retrial on the ground (1) that he had never requested a retrial but, on the contrary, had objected to the order directing a new trial and had attempted to appeal from it; and (2) that a retrial would violate his constitutional right not to be twice put in jeopardy for the same offense. He entered a formal plea of former jeopardy, which the court overruled. Defendant excepted, and the trial proceeded upon his plea of not guilty. The State offered evidence; defendant offered none. The verdict was guilty of uttering a forged instrument and not guilty of forgery. From the judgment that he be confined in the State\u2019s Prison for not less than three nor more than five years, defendant appeals.\nT. W. Bruton, Attorney General, Ralph Moody, Deputy Attorney General, and Andrew A. Vanore, Jr., Staff Attorney, for the State...\nMelvin K. Elias for defendant appellant." }, "file_name": "0330-01", "first_page_order": 370, "last_page_order": 375 }