State v. . Goings

MerrimoN, J. When this case was before us at the last term, (State v. Goings, 98 N. C., 766,) we decided that the judgment therein was erroneous, and, in effect, that no judgment could be rendered upon the verdict, for the reasons *505 then stated. The verdict was nugatory, and the Court should have set it aside; but if it had done so, it would not have followed, as a necessary consequence, that the prisoner should be discharged. The Solicitor for the State might have entered -a nolle prosequi, as to one of the two counts in the indictment, and tried him upon the other; or he might have sent a fresh bill of indictment before the grand jury, and have asked that the’prisoner should be held until they •could take action; or the prisoner might have been put upon his trial upon the present indictment, the Court requiring the Solicitor, at the close of the introduction of evidence on the trial, to elect upon which count of the indictment he would insist upon a verdict. State v. McNeill, 93 N. C., 552. The order of the Court denying the motion of the prisoner that he be discharged, was simply interlocutory — it did not determine the action, because of the reasons stated above. He might have excepted to the order, if he saw fit, and had his exception noted in the record, so that, if need be, he could have the benefit of it upon appeal from the final judgment. The action is pending before the Superior Court, to be disposed of in some such way as suggested above, and if this shall not be done in the course of procedure, the prisoner will have the right to ask to be discharged, upon the ground that the State fails to prosecute regularly and diligently as it should do. The appeal was improvidently taken, and must be dismissed. It is so ordered. Appeal dismissed.