No. 7028SC233 | N.C. Ct. App. | Aug 5, 1970
Lead Opinion
Defendant assigns as error the court’s denying his plea of former jeopardy in the felony charge on the prior termination by nolle prosequi of the misdemeanor.
“The test (of former jeopardy) is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.” State v. Barefoot, 241 N.C. 650" court="N.C." date_filed="1955-03-23" href="https://app.midpage.ai/document/state-v-barefoot-1401630?utm_source=webapp" opinion_id="1401630">241 N.C. 650, 86 S.E. 2d 424 (1955). And “. . . jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case.” State v. Birckhead, 256 N.C. 494" court="N.C." date_filed="1962-03-21" href="https://app.midpage.ai/document/state-v-birckhead-1320942?utm_source=webapp" opinion_id="1320942">256 N.C. 494, 124 S.E. 2d 838 (1962).
Defendant’s contention of former jeopardy is without merit. When the solicitor agreed to take a nolle prosequi for the State
Defendant also contends that the court erred in finding . . that the original of the note was lost; that under the circumstances of its loss, a reasonable effort was made to locate the note ... (and) that the contents of the note may be introduced into evidence by parol”, such finding not being supported by competent evidence.
With regard to the loss of the note and the efforts made to determine its location, the record discloses the following:
“Q Why did you jump out?
Objection for Defendant.
Objection overruled. Exception.
A Because what the note said scared me.
Motion to strike.
Motion overruled. Exception.
Q Do you know whether or not a search has been made for the note that night?
Objection for Defendant.
Objection sustained, unless she did it herself.
A Yes, I went home. Pam Moss is a neighbor of mine. She lives at 7 Woodrow, about 2 blocks away. Yes, she visited in my home. Well, when I got home, I told mother what happened and me and her came straight on up to the police department.
Q Did you ever see the person called Joyce McMahan, which Horace Anderson told you was his sister?
Objection for defendant.
Mr. Brown: Objection, your Honor as to what he told her.
*150 The Court: You have already asked that. Let’s move on.
Yes, he was talking about the hippies and things like that and he said if his daughter did something like that, if he had a daughter, and they ever did anything like that, he would kill them. No, sir, I’ve never been in a car with Horace Anderson before. Yes, sir, I know where Weaverville is. Yes, sir, we went by Weaverville that night. No, I don’t know which way he turned at Weaverville.
Q Do you know what was said and answer this yes or no, do you know what was said on the note?
Objection for defendant.
The Court : You may answer yes or no.
Exception.
A Yes.
Q What did it say?
Objection for defendant.
The Court: All right, now, wait just a minute. Let the jury go out.
(In the absence of the jury)
The Court: Now, what is the ground for your objection, Mr. Brown?
Mr. Brown : That the note is the best evidence and the proper foundation hasn’t been laid.
The Court: Why hasn’t it?
Mr. Brown: Because, your Honor, no search has been made for it.
The Court: Pardon?
Mr. Brown: No search has been made for it by this party and it is just that it is about a note on a piece of brown package paper of some sort and no search for it.
The Court: Well, the court finds that the original of the note was lost and that under the circumstances of its loss, a reasonable effort was made to locate the note and*151 holds that the contents of the note may be introduced in. evidence by parol. Bring the jury back.
Exception for the defendant.
(In the presence of the jury)
The Court : Read the question to the witness.
Reporter: ‘What was said and answer this yes or no, do you know what was said on the note?’
‘A Yes.
Q What did it say?’
The Court: Go ahead.
Objection. Objection overruled. Exception.
A It said, ‘Keep quiet, don’t say a word to the child.’
Solicitor : Go a little slower please.
Witness: ‘Keep quiet, don’t say a word to the child, and give me what I want or I will kill you.’
Mr. Brown : Motion to strike.
The Court: Motion overruled.”
There is no evidence to support the court’s finding that “. . . under the circumstances of its loss, a reasonable effort was made to locate the note . . .”, there being no evidence a search had been made for the note that night or that the note could not be found after due diligence. In fact there is no evidence in the record that a search for the note had been conducted at any time or any other explanations for the absence of the note.
It is obviously necessary to reiterate the opinion of Britt, J., for the Court (5 N.C. App. 614, 169 S.E. 2d 38), when this case was previously appealed: “This rule appears to be well established in this jurisdiction. ‘Evidence that a record or document has been lost and could not be found after due diligence, or had been destroyed, is sufficient foundation for the admission of secondary evidence thereof, either by introducing a properly identified copy thereof, or by parol evidence of its contents. But as a general rule parol evidence in regard to writings is properly excluded in the absence of a showing of any effort to procure the writings to offer them in evidence.’ ” Here, as in the first
Since defendant’s intent at the time of the assault is an essential element of the offense charged, the contents of the note were a vital part of the State’s evidence in showing such intent and since the contents of the note were directly in issue, the State was under an obligation to explain the absence of the note itself. State v. Anderson, swpra.
Other questions brought forward by defendant will not be discussed as they may not occur on retrial.
New trial.
Concurrence Opinion
concurring.
It seems that Britt, J., in writing the opinion for the Court after the first appeal in this case, clearly pointed to the necessity for some explanation of what happened to the original of the note. Yet, the State did not even ask the prosecuting witness what she did with the note. Her answer to that question would likely explain sufficiently the absence of the note.