17 N.C. App. 352 | N.C. Ct. App. | 1973
Defendant assigns as error the denial of his motion to dismiss the bill of indictment made before plea and renewed at the close of the State’s evidence.
In his brief defendant asserts:
“Entry of a nol pros against William Frank Clark, the only co-conspirator named in the bill of indictment, requires dismissal of this case.”
The record reveals that before the present case was called for trial, “the State took a nol pros with leave” in the case charging Clark with conspiring with defendant to violate the North Carolina Controlled Substances Act, and that Clark was allowed to plead guilty to the bill of indictment charging him with the sale of heroin to Officer L. R. Mylan on 22 May 1972 in the Jokers Three parking lot.
Defendant contends the “nol pros with leave” of the case against the alleged co-conspirator was tantamount to an acquittal of the co-conspirator and required a dismissal of the indictment against defendant Wood. We do not agree.
“ ‘In S. v. Thornton, 35 N.C. 256 (257-258) : “A nolle prosequi in criminal proceedings, is nothing but a declaration, on the part of the prosecuting officer, that he will not at that time prosecute the suit further. Its effect is to put the defendant without day — that is, he is discharged and permitted to leave the court, without entering into a recognizance to appear at any other time — (citation omitted) ; but it does not operate as an acquittal, for he may afterwards be again indicted for the same offense, or fresh process may be issued against him upon the same indictment, and he be tried upon it. (citations omitted) ” ’ ”
After a nolle prosequi has been taken, the solicitor may replace the cause on the docket only with consent of the court; whereas, a nolle prosequi with leave implies consent of the court, and the solicitor may have the case restored for trial without additional order. 2 Strong, N. C. Index 2d, Criminal Law, § 30. This assignment of error is overruled.
Defendant assigns as error the denial of his motions for judgment as of nonsuit.
There was sufficient competent evidence to require submission of this case to the jury.
Defendant excepted to and assigns as error the following portion of the court’s instructions to the jury:
“Now, members of the jury, the evidence supporting a conspiracy is generally circumstantial, and it is not necessary to prove any direct act or even any meeting of the conspirators as the facts of the conspiracy may be connected from the collateral circumstances in the case. It is for the Court to say whether or not such connection has been sufficiently shown. When this is done, the doctrine applies that each party is agent for all the others so that an act is done by one in the furtherance of an unlawful design is the act of all, and a declaration made by one at the time is evidence against all.”
Defendant contends the judge inadvertently expressed an opinion that evidence offered by the State was sufficient to show the existence of a conspiracy. We agree.
We do not discuss defendant’s other assignments of error since they are unlikely to occur on retrial.
For prejudicial error in the charge, defendant is entitled to a
New trial.