State v. SchalowÂ, 251 N.C. App. 334

Victim Erin Schalow suffered repeated assaults by husband Leonard Schalow from Dec 2013–Feb 2014; injuries led to hospitalization and police involvement.
Defendant was indicted in 14 CRS 50887 for attempted first-degree murder using the short-form caption but the indictment omitted the phrase “with malice aforethought.”
Trial in 14 CRS 50887 proceeded to jury impanelment and initial testimony; the court discovered the omission and, over Defendant’s objection, dismissed the indictment and declared a mistrial.
State re‑indicted Defendant in 15 CRS 50922 for attempted first‑degree murder (superseding indictment) and proceeded to trial; Defendant moved to dismiss on double jeopardy grounds, which was denied.
Defendant was convicted in the second trial of attempted first‑degree murder and sentenced; on appeal the Court of Appeals vacated the conviction, holding the original indictment was sufficient to allege attempted voluntary manslaughter and jeopardy had attached.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Schalow)	Held
Sufficiency of original indictment (14 CRS 50887)	Indictment was fatally defective for omitting “malice aforethought” so court lacked jurisdiction	Indictment sufficiently alleged attempted voluntary manslaughter under short‑form rules; not fatally defective	Original indictment was sufficient to allege attempted voluntary manslaughter; not fatally defective
Was mistrial justified (manifest necessity)?	Court can dismiss defective indictment and re‑try defendant	No manifest necessity; court should have proceeded on lesser‑included attempted voluntary manslaughter; objection preserved	No manifest necessity existed; declaring mistrial over objection was error
Double jeopardy effect of mistrial/dismissal	Dismissal of defective indictment permits reprosecution	Jeopardy had attached when jury was impaneled under a valid indictment; reprosecution barred as lesser and greater are same offense	Jeopardy attached; reprosecution barred because attempted voluntary manslaughter is lesser‑included of attempted murder
Trial court and appellate handling of interlocutory relief	State: retrial permitted; appellate leave appropriate	Defendant: interlocutory denial and dissolution of stay subjected him to unconstitutional second trial	Appellate denial without resolving double jeopardy claim resulted in defendant being retried in violation of his double jeopardy rights

State v. Bullock, 154 N.C. App. 234 (N.C. Ct. App. 2002) (short‑form indictment omitting malice may sustain conviction on lesser‑included attempted voluntary manslaughter)
State v. Jones, 359 N.C. 832 (N.C. 2005) (short‑form statutes permit charging attempts as subset of completed offenses)
Lee v. United States, 432 U.S. 23 (U.S. 1977) (court’s label of dismissal vs. mistrial is not dispositive; functional analysis governs retrial permissibility)
Illinois v. Somerville, 410 U.S. 458 (U.S. 1973) (mistrial due to a fatal indictment defect can be manifest necessity permitting retrial in some cases)
United States v. Scott, 437 U.S. 82 (U.S. 1978) (double jeopardy protects against multiple prosecutions even when no final determination has been made)
Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (importance of defendant’s right to have a single tribunal complete the trial; mistrials over objection require high degree of necessity)
State v. Etheridge, 319 N.C. 34 (N.C. 1987) (lesser‑included offenses and double jeopardy principles)
State v. Odom, 316 N.C. 306 (N.C. 1986) (mistrial over objection requires manifest necessity; improper mistrial bars retrial)