Tbe defendant Malcolm Smith and one Charles Smith were indicted on separate bills оf indictment, and also on a joint bill, at January Term, 1907, for tbe murder of one Milton Bunnell. This defendant, at July Term, 1915, was found guilty of murder in tbe second degree, and sentenced to a tеrm of eighteen years in tbe State Prison.
At January Term, 1907, this defendant was arraigned, and еntered a plea of not guilty. At that term of court bis codefendant, Charles Smith, was рlaced on trial and found guilty of murder in the second degree for tbe killing of Milton Bunnell, аnd was sentenced to a term of thirty years in tbe State Prison. At tbe following Septembеr term a nol. pros., with leave, was entered as to tbe defendant Malcolm Smith, who was then discharged from prison without being required to- give any bond or recognizance.
In January, 1915, this defendant was arrested under capias issued on tbe bill of indictment returned at January Term, 1907, and at July *744 Term, 1915, was placed on trial charged with the murder of Milton Bunnell. The sоlicitor, as be bad a right to do, elected to try him for murder in the second degree.
The testimony of Charles Smith, who had been previously convicted, was offered by the State, and this testimony was corroborated by the testimony of Frank Page. It is sufficient tо say that this testimony tended to prove that this defendant, Malcolm Smith, instigated his son, Charles Smith, to commit the murder.
At the commencement of the trial, and in apt time, counsel for defendant offered a plea in abatement, and moved the court tо dismiss the prosecution for the reason that the defendant had formerly been placed in jeopardy upon the bills for indictment returned by the grand jury at January Term, 1907. This motion was overruled by the court.
It appears from the record that at January Term, 1907, this defendant was arraigned and pleaded not guilty, and that at the following September term a nol. pros., with leave, was entered and the defendant discharged without bail. Charles Smith was placed on trial and convicted at January Term, 1907, but the record nowhere shows that any .proceedings were taken or trial had as to this defendаnt after his plea of not guilty until the September Term, 1907, when the nol. pros., with leave, was entered. It nowhere appears that a jury was at any time sworn and impaneled to try him.
The defendant excepts because the trial judge overruled his plea in abatement and did not submit an issue to the jury upon the plea of former jeopardy. It is true that this plea may be tried in connection with the plea of not guilty.
S. v. Elsworth,
It would have been futile, however, to have submitted аny such issue, as the record shows conclusively that this defendant was never in jeopardy. The great weight of authority is to the effect that jeopardy does not аrise until after the jury is duly impaneled and sworn to make due deliverance in the cаse, and that when this is done jeopardy attaches. "Wharton’s Criminal Law (11 Ed.), vol. 1, 517; 12 Cyc., 261.
There was no acquittal, for a
nol. pros,
in criminаl proceedings does not amount to an acquittal, and the defendant may be arrested again upon the same bill and put to trial.
S. v. Thornton,
The contention of the defendant that the testimony of Charles Smith was not sufficiently corroborated cannоt be sustained. It is well settled that in this State the uncorroborated evidence of аn accomplice is sufficient to convict, if believed by the jury. In this case the evidence of *745 Charles Smith was corroborated to a certain extent by the declarations he made to Frank Page.
The objection of the defendant that the court failed to caution the jury as to the interest the witness Charles Smith had in the matter is not sustained by a reading of the charge, for the court particularly instructеd the jury that in passing on the evidence of that witness they must take into consideration the interest he had in the matter of getting a pardon or a reduction of his sentеnce in the event he caused the conviction of his father. We think his Honor’s charge in this respect was all that defendant had a right to expect.
Upon a review of the whole record, we find
No error.