State v. Mayo

148 S.E.2d 257 (1966)

267 N.C. 415

STATE v. Ervin MAYO, Jr.

No. 2.

Supreme Court of North Carolina.

May 25, 1966.

*258 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

John A. Wilkinson, Washington, for defendant.

PLESS, Justice.

Bills of indictment may be quashed for want of jurisdiction, State v. Sloan, 238 N.C. 547, 78 S.E.2d 312, irregularity in the selection of the Grand Jury, Miller v. State, 237 N.C. 29, 74 S.E.2d 513, and for defects in the bill of indictment, State v. Faulkner, 241 N.C. 609, 86 S.E.2d 81.

A defect in a bill of indictment is not cured by the statute which enables the defendant to call for a bill of particulars the particulars authorized are not a part of the indictment, State v. Thornton, 251 N.C. 658, 111 S.E.2d 901. As stated in Joyce on Indictments, Sec. 326, p. 364:

"* * * If the indictment be not demurrable upon its face, it does not become so by the addition of a bill of particulars."

Consequently, it was error to quash the first bill because of "the record and the indictment."

We cannot agree that Judge Parker was "without power" to rule on the new bills solely because Judge Cowper had earlier ruled on a similar bill.

An examination of the eight bills considered by Judge Parker discloses that they *259 did not cover precisely the same offenses as the first bill. Two of the later bills refer to dates previous to January 27, 1964 and the total amount of the monies allegedly embezzled in the eight later bills is $1260.20 rather than $1365.25.

We find no North Carolina decision nor, indeed, one from any jurisdiction upon the exact question here presented except in some instances in which a foreign statute is being construed. The defendant in his brief gives no citations to sustain his position.

"The law of the case" contemplates an irrevocable determination or a final ruling on appeal and is quite different from res judicata.

As stated in 21 C.J.S. Courts § 195a., p. 331:

"* * * The law of the case * * * is distinct from res judicata, in that the law of the case does not have the finality of the doctrine of res judicata, and applies only to the one case, whereas res judicata forecloses parties or privies in one case by what has been done in another case, although in its essence it is nothing more than a special and limited application of the doctrine of res judicata or former adjudication, and what is known as the `law of the case,' that is, the effect and conclusiveness of a former decision in the subsequent proceedings in the same case, has been generally put upon the ground of res judicata."

Since the present bills have not been considered upon their merits, the cause is remanded for that purpose, unaffected by the previous action of the court, and to that end Judge Parker's ruling is hereby

Reversed.

PARKER, C. J., and BOBBITT, J., concur in result.

MOORE, J., not sitting.