BROCK, Judge.
The State may not appeal from a final judgment allowing a plea of former jeopardy or acquittal.
State v. Reid,
263 N.C. 825, 140 S.E. 2d 547. However, because of the apparent intre
pidity with which the assistant solicitor sought, and the District Court judge allowed, the complete termination of defendant’s trial on 16 November 1972 and the retrail of defendant on 30 November 1972, we feel that it should be stated that we agree with Judge Braswell’s conclusion that jeopardy attached on 16 November 1972, and that under the facts of this case defendant was twice put in jeopardy for the same offense when he was again called to answer to the same charge on 30 November 1972. This complete termination of the trial and retrial over defendant’s objection is a far cry from a brief recess in the trial, or from a mistrial ordered upon appropriate grounds.
The State does have a right to appeal when judgment has been given for a defendant upon declaring a statute unconstitutional. G.S. 15-179(6). Under the procedure and theory followed in the Superior Court, the judgment was given for defendant only after G.S. 15-177.1 was declared “unconstitutional as it relates to the facts of this particular case.” It is upon this right that the State bases its appeal.
Defense counsel, the State, and the Superior Court judge all seem to have agreed that G.S. 15-177.1 prevented defendant from asserting in Superior Court, on appeal, a plea of former jeopardy for having been twice put in jeopardy in District Court. For the reasons hereinafter stated, we are of the opinion that G.S. 15-177.1 presents no impediment to the consideration by the Superior Court upon appeal for a trial
de novo
of defendant’s plea in bar for having been twice put in jeopardy in the District Court.
As we understand the theory which prevailed in the Superior Court in this case, the following could occur:
A defendant could be tried, convicted and sentenced in District Court. Over his plea of former jeopardy, he again could be tried, convicted and sentenced in District Court upon the same charge. If he then appealed to the Superior Court from this second conviction, the trial
de novo
provision of the statute (G.S. 15-177.1) would prevent the Superior Court from considering his plea of former jeopardy.
This, of course, the statute does not do. It provides as follows:
“In all cases of appeal to the superior court in a criminal action from a justice of the peace or other inferior
court, the defendant shall be entitled to a trial anew and de novo by a jury, without prejudice from the former proceedings of the court below, irrespective of the plea entered or the judgment pronounced thereon.”
The primary purpose of the quoted statute is to allow a completely new trial in Superior Court without the burden of the plea, judgment, or proceedings in the inferior court
in the trial from which defendant appealed.
It does not remove from consideration in the trial
de novo
the plea, judgment, and proceedings of a trial in District Court which occurred
prior to
the trial appealed from. Where a defendant conceives that he has once been placed in jeopardy and is brought to trial in District Court again upon the same charge, his plea of former jeopardy is cognizable in the District Court. If defendant’s plea is overruled and he is convicted in the District Court in what he conceives to be a trial for an offense for which he has formerly been placed in jeopardy, upon appeal to the Superior Court for a trial
de novo,
he may properly reassert his plea of former jeopardy. We are not dealing with a situation in which a defendant is pleading former jeopardy for having been placed in jeopardy in District Court for the first time
in the trial from which he has appealed.
The inquiry is whether he has been placed in jeopardy for the same offense
prior to the time of the trial
from which he has appealed. It is clear that the trial
de novo
in Superior Court does not itself constitute double jeopardy. This is not the question raised by the defendant’s plea in this case.
From the recitations in the judgment of the Superior Court, it seems clear that the trial judge relied upon the principles enunciated in
State v. Spencer,
276 N.C. 535, 173 S.E. 2d 765, and in
State v. Sparrow,
276 N.C. 499, 173 S.E. 2d 897. The principles stated therein are clearly the law in this state; however, they have no application to the factual situation presented by the present appeal. We are advertent to the implications of
State v. Stilley,
4 N.C. App. 638, 167 S.E. 2d 529, and we disagree with its reasoning.
In
Spencer
the defendants were convicted in District Court and were sentenced to sixty days iñ jail. These sentences were suspended and defendants were placed on probation on certain conditions. Each defendant appealed to the Superior Court where, upon trial
de novo
by jury, they were again convicted. In Superior Court one defendant was given an active sentence of nine months and the other five were given active sentences of
six months. On appeal defendants argued that these greater sentences in Superior Court deprived them of their constitutional right to trial by jury because the exercise of their right to appeal from District Court to Superior Court for trial
de novo
by jury was unduly restricted by the threat of a greater sentence upon conviction in Superior Court.
In laying this argument to rest the Supreme Court in
Spencer
stated:
“It is established law in North Carolina that trial
de novo
in the superior court is a new trial from beginning to end, on both law and facts disregarding completely the plea, trial, verdict and judgment below; and the superior court judgment entered upon conviction there is wholly independent of any judgment which was entered in the inferior court. ‘The fact that a right of appeal was given where the defendant was convicted in the lower court without the intervention of a jury has generally been regarded as a sufficient reason, in support of the validity of such trials without a jury in the inferior tribunal, as by appealing the defendant secures his right to a jury trial, in the Superior Court, and therefore cannot justly complain that he has been deprived of his constitutional right.’
State v. Pulliam,
184 N.C. 681, 114 S.E. 394. Accord:
State v. Norman,
237 N.C. 205, 74 S.E. 2d 602.”
* ❖ ❖
“Here, defendants were entitled to a trial
de novo
in the superior court even though their trials in the inferior court were free from error. G.S. 7A-288 (now G.S. 7A-290) and G.S. 15-177.1. This is an unfettered statutory right. It therefore appears that when these defendants appealed to the superior court the slate was wiped clean and the cases stood for trial in the superior court as if there had been no previous trial in the district court.
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BROCK, Judge.
The State may not appeal from a final judgment allowing a plea of former jeopardy or acquittal.
State v. Reid,
263 N.C. 825, 140 S.E. 2d 547. However, because of the apparent intre
pidity with which the assistant solicitor sought, and the District Court judge allowed, the complete termination of defendant’s trial on 16 November 1972 and the retrail of defendant on 30 November 1972, we feel that it should be stated that we agree with Judge Braswell’s conclusion that jeopardy attached on 16 November 1972, and that under the facts of this case defendant was twice put in jeopardy for the same offense when he was again called to answer to the same charge on 30 November 1972. This complete termination of the trial and retrial over defendant’s objection is a far cry from a brief recess in the trial, or from a mistrial ordered upon appropriate grounds.
The State does have a right to appeal when judgment has been given for a defendant upon declaring a statute unconstitutional. G.S. 15-179(6). Under the procedure and theory followed in the Superior Court, the judgment was given for defendant only after G.S. 15-177.1 was declared “unconstitutional as it relates to the facts of this particular case.” It is upon this right that the State bases its appeal.
Defense counsel, the State, and the Superior Court judge all seem to have agreed that G.S. 15-177.1 prevented defendant from asserting in Superior Court, on appeal, a plea of former jeopardy for having been twice put in jeopardy in District Court. For the reasons hereinafter stated, we are of the opinion that G.S. 15-177.1 presents no impediment to the consideration by the Superior Court upon appeal for a trial
de novo
of defendant’s plea in bar for having been twice put in jeopardy in the District Court.
As we understand the theory which prevailed in the Superior Court in this case, the following could occur:
A defendant could be tried, convicted and sentenced in District Court. Over his plea of former jeopardy, he again could be tried, convicted and sentenced in District Court upon the same charge. If he then appealed to the Superior Court from this second conviction, the trial
de novo
provision of the statute (G.S. 15-177.1) would prevent the Superior Court from considering his plea of former jeopardy.
This, of course, the statute does not do. It provides as follows:
“In all cases of appeal to the superior court in a criminal action from a justice of the peace or other inferior
court, the defendant shall be entitled to a trial anew and de novo by a jury, without prejudice from the former proceedings of the court below, irrespective of the plea entered or the judgment pronounced thereon.”
The primary purpose of the quoted statute is to allow a completely new trial in Superior Court without the burden of the plea, judgment, or proceedings in the inferior court
in the trial from which defendant appealed.
It does not remove from consideration in the trial
de novo
the plea, judgment, and proceedings of a trial in District Court which occurred
prior to
the trial appealed from. Where a defendant conceives that he has once been placed in jeopardy and is brought to trial in District Court again upon the same charge, his plea of former jeopardy is cognizable in the District Court. If defendant’s plea is overruled and he is convicted in the District Court in what he conceives to be a trial for an offense for which he has formerly been placed in jeopardy, upon appeal to the Superior Court for a trial
de novo,
he may properly reassert his plea of former jeopardy. We are not dealing with a situation in which a defendant is pleading former jeopardy for having been placed in jeopardy in District Court for the first time
in the trial from which he has appealed.
The inquiry is whether he has been placed in jeopardy for the same offense
prior to the time of the trial
from which he has appealed. It is clear that the trial
de novo
in Superior Court does not itself constitute double jeopardy. This is not the question raised by the defendant’s plea in this case.
From the recitations in the judgment of the Superior Court, it seems clear that the trial judge relied upon the principles enunciated in
State v. Spencer,
276 N.C. 535, 173 S.E. 2d 765, and in
State v. Sparrow,
276 N.C. 499, 173 S.E. 2d 897. The principles stated therein are clearly the law in this state; however, they have no application to the factual situation presented by the present appeal. We are advertent to the implications of
State v. Stilley,
4 N.C. App. 638, 167 S.E. 2d 529, and we disagree with its reasoning.
In
Spencer
the defendants were convicted in District Court and were sentenced to sixty days iñ jail. These sentences were suspended and defendants were placed on probation on certain conditions. Each defendant appealed to the Superior Court where, upon trial
de novo
by jury, they were again convicted. In Superior Court one defendant was given an active sentence of nine months and the other five were given active sentences of
six months. On appeal defendants argued that these greater sentences in Superior Court deprived them of their constitutional right to trial by jury because the exercise of their right to appeal from District Court to Superior Court for trial
de novo
by jury was unduly restricted by the threat of a greater sentence upon conviction in Superior Court.
In laying this argument to rest the Supreme Court in
Spencer
stated:
“It is established law in North Carolina that trial
de novo
in the superior court is a new trial from beginning to end, on both law and facts disregarding completely the plea, trial, verdict and judgment below; and the superior court judgment entered upon conviction there is wholly independent of any judgment which was entered in the inferior court. ‘The fact that a right of appeal was given where the defendant was convicted in the lower court without the intervention of a jury has generally been regarded as a sufficient reason, in support of the validity of such trials without a jury in the inferior tribunal, as by appealing the defendant secures his right to a jury trial, in the Superior Court, and therefore cannot justly complain that he has been deprived of his constitutional right.’
State v. Pulliam,
184 N.C. 681, 114 S.E. 394. Accord:
State v. Norman,
237 N.C. 205, 74 S.E. 2d 602.”
* ❖ ❖
“Here, defendants were entitled to a trial
de novo
in the superior court even though their trials in the inferior court were free from error. G.S. 7A-288 (now G.S. 7A-290) and G.S. 15-177.1. This is an unfettered statutory right. It therefore appears that when these defendants appealed to the superior court the slate was wiped clean and the cases stood for trial in the superior court as if there had been no previous trial in the district court. Hence, in the sound discretion of the superior court judge, his sentence may be lighter or heavier than that imposed in the district court.
State v. Morris,
275 N.C. 50, 61, 165 S.E. 2d 245, 252.”
In
Sparrow
the defendants were convicted and sentenced in the District Court. They appealed to Superior Court where they were tried
de novo
by a jury and again convicted. The sentences imposed in Superior Court were greater than those imposed in District Court. Defendants argued that the greater sentences in
Superior Court deprived them of the Sixth Amendment right to trial by jury because the exercise of their right of appeal to the Superior Court, where they could be tried by jury, was unduly restricted because of the risk of a greater sentence upon conviction in the Superior Court.
In laying this argument to rest the Supreme Court in
Sparrow
stated:
“Here, an appeal entitled these defendants to a trial
de novo
in the Superior Court as a matter of right. This is true even when an accused pleads guilty in the inferior court.
State v. Broome,
269 N.C. 661, 153 S.E. 2d 384;
State v. Meadows,
234 N.C. 657, 68 S.E. 2d 406. When an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose.”
In
Sparrow
the court also quoted with approval from
State v. Morris,
275 N.C. 50, 61, 165 S.E. 2d 245, 252 as follows:
“The fact that defendant received a greater sentence in the superior court than he received in the Recorder’s Court of Thomasville is no violation of his constitutional or statutory rights. Upon appeal from an inferior court for a trial
de novo
in the superior court, the superior court may impose punishment in excess of that imposed in the inferior court provided the punishment imposed does not exceed the statutory maximum.”
The opinions in
Spencer
and
Sparrow
hold that when a defendant appeals from District Court, where he is not entitled to a trial by jury, to the Superior Court, where he is entitled to a trial
de novo
by a jury, the judgment and the proceedings in the trial from which he appealed are overruled as if the trial had never taken place. These opinions are clearly referring to the judgment and proceedings in the District Court
in the trial from which defendants appealed.
These opinions clearly do not hold that the judgment and proceedings in District Court in trials
taking place prior to
the one appealed from are annulled.
In a like manner the opinions in
Colten v. Kentucky,
407 U.S. 104, 32 L.Ed. 2d 584, 92 S.Ct. 1953;
State v. Broome,
269 N.C. 661, 153 S.E. 2d 384; and
State v. Meadows,
234 N.C. 657,
68 S.E. 2d 406;
State v. Overby,
4 N.C. App. 280, 166 S.E. 2d 461; and
Doss v. North Carolina,
252 F. Supp. 298 (M.D. N.C. 1966) refer to the annulment of the judgment and proceedings
in the trial from which defendant appealed
to the Superior Court. Nothing in these opinions relates to annulment of proceedings in a trial in the District Court
which took place prior to
the trial appealed from. Insofar as
Colten, Spencer, Sparrow, Broome, Meadows, Overby,
or
Doss
might support a general statement that a defendant may not ordinarily complain on appeal in Superior Court of constitutional deprivations suffered in the District Court, such a general statement does not conflict with our holding in this case. Such a general statement refers to the
de novo
nature of the trial in Superior Court where, if the constitutional guarantees are observed, a constitutional defect in the District Court trial is cured; e.g., where counsel is not appointed for an indigent in District Court, but, upon appeal for trial
de novo,
counsel is provided in the Superior Court (as was the situation in
Doss).
A plea of former jeopardy is a plea in bar to the prosecution. It poses an inquiry as to what action the court has taken on a former occasion. This inquiry is determined by the trier of facts unless it can be determined as a matter of law on the record.
State v. Davis,
223 N.C. 54, 25 S.E. 2d 164. The plea of former jeopardy is not an automatic bar to further prosecution. The burden is on defendant to plead and to offer evidence to sustain his plea of former jeopardy. If he fails to plead this defense it is waived.
State v. Cutshall,
278 N.C. 384, 180 S.E. 2d 745. “The constitutional right not to be placed in jeopardy twice for the same offense, like other constitutional rights, may be waived by the defendant and such waiver is usually implied from his action or inaction when brought to trial at the subsequent proceeding, (citations omitted).”
State v. Hopkins,
279 N.C. 473, 183 S.E. 2d 657. When double jeopardy is raised as a defense, it is abandoned if defendant pleads guilty after an adverse ruling on his plea of double jeopardy.
State v. Hopkins, supra.
The general rule is that jeopardy attaches when a defendant in a criminal prosecution is placed on trial (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been impaneled and sworn to make true deliverance in the case. 2 Strong, N. C. Index 2d, Criminal
Law, § 26, p. 516. In our view, a valid warrant charging an offense within the jurisdiction of the District Court is sufficient to satisfy requirement (1) when the trial is in District Court. In our view, when the State calls upon a defendant to plead to a charge in District Court, requirement (3) is satisfied. And, in our view, when a duly elected, qualified, and assigned District Coúrt judge is present to sit as the trier of the facts, requirement (5) is satisfied. Requirements (2) and (4) are by their terms applicable to either the Superior Court or the District Court. Therefore, in our view, it is possible for a person to be twice placed in jeopardy within the District Court system and, if he is, his constitutional right against such action by the State may properly be asserted by a plea of former jeopardy in bar of a second trial in District Court for the same offense. If his plea of former jeopardy is overruled in District Court, and he is placed on trial there and convicted, he may appeal to the Superior Court from this second trial unburdened by the District Court ruling on his plea in bar or any of the other proceedings in the trial appealed from (the second trial). The-defendant will then be tried
de novo
and he may assert his plea in bar
de novo
in the Superior Court. If it is determined in Superior Court that defendant has been twice placed in jeopardy in the District Court, the plea in bar should be sustained. This procedure is consistent with the provisions of G.S. 15-177.1.
As stated above, in our opinion, the Superior Court judge was correct in sustaining defendant’s plea of former jeopardy. However, he fell into error in considering that G.S. 15-177.1 constituted an impediment to defendant’s right to assert his plea of former jeopardy upon the trial
de novo
in the Superior Court; and, consequently, was in error in declaring the statute unconstitutional in this respect.
In our opinion that portion of the judgment appealed from which sustains defendant’s plea of former jeopardy is correct and is affirmed. That portion of the judgment appealed from which holds G.S. 15-177.1 “unconstitutional under the facts of this case” is reversed.
Affirmed in part
Reversed in part.
Judges Campbell and Graham concur.