State v. . Locke

Ruffin, J. The prisoner’s counsel seemed to be aware that the appeal could not be maintained, upon the ground that no appeal will lie from an interlocutory judgment in a *649 criminal action, and without insisting thereon asked for a rule upon the state to show cause why a writ of certiorari should not issue, relying upon the matter set out in the record as sufficient to support his motion. We feel constrained both to dismiss the appeal and to deny the motion for a certiorari: The first, for the reason above suggested, that no appeal will lie in a criminal action except from a final judgment ; and the latter, because the practice of this court is to grant writs of certiorari only when applied for by petition in due form, setting forth the grounds of the application. This, it was said in Jefferson’s case, 66 N. C., 309, is the regular and orderly mode of proceeding, and that it should not be departed from except under peculiar circumstances. But apart from any mere question of procedure, we are of opinion that the strictest requirements of the law, (as laid down in State v. Honeycutt, 74 N. C., 391, and State v. McGimsey, 80 N. C., 377), were all met and fully complied with in the care taken by His Honor to make the record and declare his finding thereon. Seeing nothing in the case that can possibly constitute a legal defence against the further prosecution of the prisoner, we dismiss his appeal, and overrule his motion for a certiorari. As to the suggestion that His Honor found but the single fact of the inability of the jury to agree, it is unsupported by the statement of the case as prepared by His Honor. He distinctly states that he found all the facts set out i.n the record, and that acting upon those facts, as found, he directed the mistrial; and without any such express declaration, it would be so understood from the very -manner of making up the record. Per Curiam. Appeal dismissed, certiorari refused.