{ "id": 8572411, "name": "STATE OF NORTH CAROLINA v. WILSON MILLER", "name_abbreviation": "State v. Miller", "decision_date": "1967-12-13", "docket_number": "", "first_page": "243", "last_page": "246", "citations": [ { "type": "official", "cite": "272 N.C. 243" } ], "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": "267 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559490 ], "opinion_index": -1, "case_paths": [ "/nc/267/0409-01" ] }, { "cite": "166 S.E. 180", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611084 ], "opinion_index": 0, "case_paths": [ "/nc/203/0361-01" ] }, { "cite": "89 S.E. 2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619766 ], "opinion_index": 0, "case_paths": [ "/nc/242/0595-01" ] }, { "cite": "117 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625207 ], "opinion_index": 0, "case_paths": [ "/nc/253/0348-01" ] }, { "cite": "132 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573304 ], "opinion_index": 0, "case_paths": [ "/nc/260/0133-01" ] }, { "cite": "145 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560074 ], "opinion_index": 0, "case_paths": [ "/nc/266/0234-01" ] }, { "cite": "72 S.E. 2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625519 ], "opinion_index": 0, "case_paths": [ "/nc/236/0344-01" ] }, { "cite": "90 S.E. 2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622161 ], "opinion_index": 0, "case_paths": [ "/nc/243/0149-01" ] }, { "cite": "118 S.E. 2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624823 ], "opinion_index": 0, "case_paths": [ "/nc/254/0162-01" ] }, { "cite": "38 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620624 ], "opinion_index": 0, "case_paths": [ "/nc/226/0410-01" ] }, { "cite": "160 S.E. 825", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626915 ], "opinion_index": 0, "case_paths": [ "/nc/201/0571-01" ] }, { "cite": "172 S.E. 216", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630850 ], "opinion_index": 0, "case_paths": [ "/nc/205/0659-01" ] }, { "cite": "161 S.E. 727", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 793", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628179 ], "opinion_index": 0, "case_paths": [ "/nc/201/0793-01" ] }, { "cite": "98 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276204 ], "opinion_index": 0, "case_paths": [ "/nc/98/0738-01" ] }, { "cite": "84 N.C. 773", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698763 ], "opinion_index": 0, "case_paths": [ "/nc/84/0773-01" ] }, { "cite": "113 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653841 ], "opinion_index": 0, "case_paths": [ "/nc/113/0673-01" ] }, { "cite": "38 S.E. 473", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "128 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661502 ], "opinion_index": 0, "case_paths": [ "/nc/128/0584-01" ] } ], "analysis": { "cardinality": 430, "char_count": 8548, "ocr_confidence": 0.564, "pagerank": { "raw": 2.734095233186431e-07, "percentile": 0.8313569632824153 }, "sha256": "b277254f96aa61d3dd513aa732567c5ce82245436257fc279de46cb0fe7a7640", "simhash": "1:b395435dbfb8d7df", "word_count": 1473 }, "last_updated": "2023-07-14T21:31:35.058336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pless, J., concurs in result." ], "parties": [ "STATE OF NORTH CAROLINA v. WILSON MILLER." ], "opinions": [ { "text": "Higgins, J.\nDefense counsel, in the brief and in the oral argument, has insisted the trial court committed prejudicial error by permitting the Solicitor to place the defendant on trial for murder in the second degree, after having placed in the record the announcement he would ask for a verdict of guilty of manslaughter only. Had the jury convicted the defendant of murder in the second degree, as it might have under the Court\u2019s charge, a grave question would be presented whether the verdict could stand. But the jury, having convicted of manslaughter only, we are confronted with the question whether prejudice is shown by the submission of murder in the second degree.\nThis Court, in many cases, has considered the effect of the Solicitor\u2019s announcement that the State would not prosecute on certain counts in a bill. There seems to be no difference whether the counts are separately stated or included as different degrees of guilt in a single count.\nIn State v. Hunt, 128 N.C. 584 (431 in the revision), 38 S.E. 473, Clark, J. (later C.J.) stated: \u201cUnder an indictment for murder the defendant may be convicted either of murder in the first degree, murder in the second degree, or manslaughter, and even of. assault with a deadly weapon, or simple assault \u2018if the evidence shall warrant such finding\u2019 when he is not acquitted entirely. Laws 1885, ch. 68. It is as if all these counts were separately set out in the bill (for it includes all of them), S. v. Gilchrist, 113 N.C. 673; and the Solicitor can nol pros, any count, and a nol pros, in such case is in effect a verdict of acquittal as to that. S. v. Taylor, 84 N.C. 773; S. v. Sorrell, 98 N.C. 738. (587).\u201d\nIn State v. Brigman, 201 N.C. 793, 161 S.E. 727, Stacy, C.J. stated: \u201cThe announcement of the solicitor made before entering upon the trial that the State would not prosecute the defendant for the alleged wilful abandonment and nonsuppbrt of his wife, was tantamount to taking a nolle prosequi, or ... an acquittal, on this charge.\u201d Citing State v. Hunt, supra.\nIn State v. Wall, 205 N.C. 659, 172 S.E. 216, Stacy, C.J. stated: \u201cThe announcement of the solicitor made before entering upon the trial that the State would not ask for a verdict of more than murder in the second degree was tantamount to making a nolle prosequi on the capital charge.\u201d Citing State v. Spain, 201 N.C. 571, 160 S.E. 825.\nIn State v. Locklear, 226 N.C. 410, 38 S.E. 2d 162, this Court stated: \u201cAnd when the solicitor stated that he would not ask for a verdict of first degree burglary but would only ask for a verdict of second degree burglary on the indictment, it was tantamount to taking a nol pros with leave on ,the capital charge.\u201d Citing State v. Spain, supra.\nThe use of the expression \u201cwith leave\u201d seems to imply the capital charge might thereafter be 'revived.' We do not think the authorities permit another prosecution for any offense which the Solicitor has elected to eliminate. The Solicitor is a constitutional officer authorized and empowered to represent the State. The State is not permitted to split up an indictment and try it piecemeal. In State v. Haddock, 254 N.C. 162, 118 S.E. 2d 411, Parker, J. (now C.J.) stated: \u201cThe trial judge\u2019s election not to submit to the jury in his charge the second count in the indictment will be treated as the equivalent of a verdict of not guilty on that count.\u201d Citing State v. Mundy, 243 N.C. 149, 90 S.E. 2d 312; State v. Love, 236 N.C. 344, 72 S.E. 2d 737. The correct theory is that the State should present all charges in the indictment in one trial without reserving anything which would or .might bring the defendant back to answer a charge .which the -State, by failing to present at the proper time, had abandoned.\nIn this case, the defendant has not shown prejudice. At the first trial, issues of his guilt of murder- in the second degree or manslaughter were properly submitted. The jury convicted of manslaughter. The State\u2019s evidence tended strongly to show the defendant intentionally shot Bruce Browning through the heart. Browning was unarmed. In neither of his trials did the defendant testify or introduce evidence. The record fails to disclose any valid ground upon which the defendant may place hope for a verdict of not guilty.\nInasmuch as the legal effect of the Solicitor\u2019s announcement not to prosecute for murder in the second degree is directly presented on this appeal, we deem it not inappropriate to state here what we conceive to be the legal effect of the announcement. When, upon arraignment, or thereafter in open court, and in the presence of the defendant, the Solicitor announces the State will not ask for a verdict of guilty of the maximum crime charged but will ask for a verdict of guilty on a designated and included lesser offense embraced in the bill, and the announcement is entered in the minutes of the Court, the announcement is the equivalent of a verdict of not guilty on the charge or charges the Solicitor has elected to abandon. State v. Pearce, 266 N.C. 234, 145 S.E. 2d 918.\nIt appears the Solicitor\u2019s announcement that he would prosecute for manslaughter only precluded the State from prosecuting for murder in the second degree. Consequently, the Court committed error in submitting second degree murder, and charging the jury on that offense. However, the record fails to disclose any basis for hope that another trial would produce a different or more favorable result. Technical error is not enough. Such error is non-prejudicial unless it may have affected the outcome. State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364; State v. Downey, 253 N.C. 348, 117 S.E. 2d 39; State v. Scott, 242 N.C. 595, 89 S.E. 2d 153; State v. Garner, 203 N.C. 361, 166 S.E. 180.\nNo error.\nPless, J., concurs in result.", "type": "majority", "author": "Higgins, J." } ], "attorneys": [ "T. W. Bruton, Attorney General, Harry W. McGalliard, Deputy Attorney General, for the State.", "Blackwell M. Brogden for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILSON MILLER.\n(Filed 13 December, 1967.)\n1. Criminal Law \u00a7\u00a7 24, 26, 30\u2014\nWhen the solicitor announces upon defendant\u2019s arraignment, or thereafter in open court, that the State will not ask for a verdict of guilty of the maximum crime charged but will ask for a verdict of guilty of a designated and included less offense embraced in the bill, and the announcement is entered in the minutes of the court, such announcement is the equivalent of a verdict of not guilty on the charge or charges the solicitor has elected to abandon, and the State will not be permitted another prosecution on the charge or charges eliminated.\n2. Criminal Law \u00a7 171\u2014\nAn announcement by the solicitor in open court that the State would prosecute defendant only for manslaughter precludes the State from thereafter prosecuting defendant for murder in the second degree, but the trial court\u2019s submission of the charge of second degree murder to the jury, though technically erroneous, held not to warrant a new trial in this case, since the jury returned a verdict of guilty of manslaughter, and since the record fails to disclose that another trial would produce a different or more favorable result.\nAppeal by defendant from Carr, J., May 1967 Criminal Session, Durham Superior Court.\nAt the May 1965 Session, the Grand Jury returned a bill of indictment charging the defendant, Wilson Miller, with the murder of Bruce Browning. At the December 1965 Session, upon arraignment, the Solicitor announced that the State would not seek a verdict of guilty of murder in the first degree but would ask for a verdict of guilty of murder in the second degree, or manslaughter, as the evidence might warrant. The jury returned a verdict of guilty of manslaughter. The Court imposed a prison sentence of 5 to 7 years. On appeal, this Court granted a new trial. The case is reported in 267 N.C. 409.\nAt the new trial before Carr, J., the Solicitor announced the State would only prosecute for the crime of manslaughter. The announcement was recorded. However, the Solicitor either made the announcement inadvertently or changed his mind after conference at the bench with the Court and defense counsel. The charge of murder in the second degree and manslaughter were submitted to the jury under the Court\u2019s charge. The State\u2019s evidence at the new trial (which is summarized in our former opinion) was substantially the same in material parts as that introduced at the first trial.\nThe jury again returned a verdict finding the defendant guilty of manslaughter. Judge Carr imposed a prison sentence of 5 to 7 years. The defendant has again appealed.\nT. W. Bruton, Attorney General, Harry W. McGalliard, Deputy Attorney General, for the State.\nBlackwell M. Brogden for defendant appellant." }, "file_name": "0243-01", "first_page_order": 279, "last_page_order": 282 }