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Criminal Practice — Constitutional – Double Jeopardy – Attempted Murder Indictment – Incomplete – Attempted Voluntary Manslaughter – Contested Mistrial
Teresa Bruno, Opinions Editor//December 29, 2016//
Criminal Practice — Constitutional – Double Jeopardy – Attempted Murder Indictment – Incomplete – Attempted Voluntary Manslaughter – Contested Mistrial
Teresa Bruno, Opinions Editor//December 29, 2016//
State v. Schalow (Lawyers Weekly No. 011-434-16, 31 pp.) (John Tyson, J.) Appealed from Henderson County Superior Court (Mark Powell, J.) N.C. App.
Holding: The original indictment against defendant was insufficient to allege attempted murder, but it was sufficient to allege the lesser included offense of attempted voluntary manslaughter. Since the insufficiency of the indictment was not noticed until after the jury had been empaneled and the state had presented evidence, jeopardy had attached, and since defendant objected to the court’s decision to grant a mistrial, defendant could not be tried for the same offense again.
We vacate defendant’s conviction of attempted first-degree murder, which was obtained after he was re-indicted for the same offense.
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