State v. . Respass
85 N.C. 534
N.C.
1881
Check Treatment
Ashe, J.

In the view we take of this case, there was no error in the ruling of the court in excluding the testimony of the witness, Eborn, as to the proof before the jury'in the justice’s court. When the appeal from the justice’s judgment was returned to the superior court and the bill of indictment was subsequently found by the grand jury, there were then two criminal actions pending in that court against the defendant for the same offence. The solicitor had h'is election to proceed upon either. State v. Dixon, 78 N. C., 558. He c-hose to proceed upon the bill of indictment, ■which had the effect of a nolle prosequi as to the warrant, and was no defence to the indictment. State v. McNeill, 3 Hawks, 183. So in that view of the case there was no final determination of the prosecution commenced before the justice, without which the plea of “ former acquittal ” could *537 not be sustained. What evidence there was offered before the justice was an immaterial injury.

We are of the opinion however that the judgment rendered against the defendant by his Honor was erroneous. The point has been expressly decided in Pollard’s case, 83 N. C., 597, where the defendánt pleaded “ former acquittal” and “ not guilty,” and the Chief Justice in a careful and well considered opinion, concurred in by his associates, held that the two pleás may be pleaded, and though the jury.cannot be impaneled to try the issues raised by both pleas at the same time, the difficulty is obviated by allowing the second plea and a jury trial of it, after the verdict on a preceding plea. And it is held that no final judgment can be rendered on the finding of the jury upon the plea of “former acquittal,” for the reason that such a judgment is only interlocutory, and that when both pleas are entered, it is the duty of the court after the finding of a verdict against the defendant upon the issue raised by the plea of “ former acquittal,” to proceed to trial upon the plea of “ not guilty.” But in this case the court refused to allow the defendant to plead both pleas, and there the error commenced.

Holding there is error, the judgment of the superior court is reversed and the case remanded that the defendant may be allowed to plead “ not guilty ” and go to the jury upon that issue.

Error. Reversed.