BRANCH, J.
Defendant assigns as error the trial judge’s denial of his plea in abatement by which he contended that he should not be tried twice for his life.
Defendant relies heavily on
Green v. United States,
355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957), where the United States Supreme Court held that a defendant, charged with first degree murder but convicted of second degree murder, received an implied acquittal of the charge of first degree murder which prevented retrial on that charge because to so do would place him twice in jeopardy. Wright contends that the interpretation of
Green v. United States, supra,
by the Fourth Circuit Court of Appeals in the case of
Patton v. North Carolina,
381 F. 2d 636 (4th Cir. 1967), prohibited the State from seeking the death penalty at his retrial when he received life imprisonment at his first trial.
To here review, in depth, the pertinent principles of law would be unnecessary repetition since they have recently been clearly and fully stated by Sharp, J., in the case of
State v. Stafford,
274 N.C. 519, 164 S.E. 2d 371. There the Court, in rejecting the holdings of Patton,
inter alia,
stated:
All courts agree that when a defendant seeks a new trial by appealing his conviction he waives his protection against repros-ecution. “[I]t is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted.”
Ball v. United States,
163 U.S. 662, 672, 14 S. Ct. 1192, 1195, 41 L. Ed. 300, 303 (1896).
We reject the premise that a defendant who secures a new trial waives his right to protection from a retrial but retains a vested right in the vacated sentence as a ceiling.
In this case defendant was not convicted of the greater offense, nor did he receive increased punishment. Therefore, since there is no basis for this assignment of error, it is overruled.
Defendant by his second assignment of error contends that the trial court erred in admitting into evidence inculpatory statements purportedly made by him.
On the former appeal of this case this Court passed on the admissibility of the inculpatory statements purportedly made by defendant and in the opinion
(State v. Wright, supra), inter alia,
stated:
Therefore, the questions asked by the officers and the answers given by defendant relative to removal of the screen, entry of the Byrd home through the window, and touching the woman but not raping her, became competent evidence and were properly admitted for consideration by the jury.
In the case of
State v. Stone,
226 N.C. 97, 36 S.E. 2d 704, the defendant excepted to the refusal of the court to grant his motion for nonsuit. The exception had been before the Court on a former appeal
(State v. Stone,
224 N.C. 848, 32 S.E. 2d 651), and the Court in the second appeal stated:
These exceptions are untenable for the reason that this case was before the Court on a former appeal (cite omitted) and the Court then said: “We think the evidence sufficient to warrant its submission to the jury.” The evidence produced at this trial is substantially similar to the evidence produced at the former trial. Under these circumstances the question of non-suit, or the sufficiency of the evidence to be submitted to the jury, the decision of the Court on the former appeal is decisive.
S. v. Lee,
213 N.C. 319, 195 S.E. 785.
Accord:
State v. Peterson,
226 N.C. 770, 40 S.E. 2d 362;
Jernigan v. Jernigan,
207 N.C. 831, 178 S.E. 587. See also 5 Am. Jur. 2d, Appeal and Error, § 744, at 188
et seq.
The principle of “law of the case” has been specifically applied to inculpatory admissions of a defendant in other jurisdictions. The California Supreme Court considered this principle in the case of
People v. Modesto,
66 Cal. 2d 695, 59 Cal. Rptr. 124, 427 P. 2d 788. The Court’s decision concerning the application of the principle of “law of the case” is correctly stated in headnote four of the case as reported in the Pacific Reporter, viz:
Reconsideration of admissibility of defendant’s statements to police was precluded by doctrine of the law of the case where facts on which prior ruling was predicated remained unchanged.
In the case of
Pool v. Commonwealth,
308 Ky. 107, 213 S.W. 2d 603, the Court stated:
Appellant further contends that an error was committed in the admission of his written confession as legal evidence against himself on this trial. Under what is known as “the law of the case” rule, this written confession, just as it was set out at full length in our opinion on the first appeal, would not now be a proper subject of sound legal attack upon this second appeal.
See also
Bryant v. State,
197 Ga. 641, 30 S.E. 2d 259.
We have carefully compared the evidence relating to the admission of inculpatory statements made by defendant in the previous trial with that in this case and we find it to be substantially the same. If there be any variance, the difference favors the admissibility of the evidence.
Nevertheless, because of the serious nature of this case we have again carefully considered the merits of defendant’s contention. We find that upon his objection to the testimony relating to the inculpatory statements purportedly made by him, the trial judge properly held a
voir dire
hearing to determine whether the statements were in fact voluntarily and understandingly made.
State v. Conyers,
267 N.C. 618, 148 S.E. 2d 569;
State v. Rogers,
233 N.C. 390, 64 S.E. 2d 572. Both the State and defendant offered evidence on
voir dire
and at the conclusion of the
voir dire
hearing the trial judge made full findings of fact and concluded that defendant’s statements were “freely, voluntarily, knowingly and intelligently made.” There was competent evidence to support the findings of fact and these findings are binding on this Court.
State v. Gray,
268 N.C. 69, 150 S.E. 2d 1. The findings of fact support the con-
elusions of law. For the reasons stated, this assignment of error is overruled.
Defendant contends that the court erred in failing to grant his motion for judgment as of nonsuit.
In the case of
State v. Bogan,
266 N.C. 99, 145 S.E. 2d 374, it is stated:
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BRANCH, J.
Defendant assigns as error the trial judge’s denial of his plea in abatement by which he contended that he should not be tried twice for his life.
Defendant relies heavily on
Green v. United States,
355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957), where the United States Supreme Court held that a defendant, charged with first degree murder but convicted of second degree murder, received an implied acquittal of the charge of first degree murder which prevented retrial on that charge because to so do would place him twice in jeopardy. Wright contends that the interpretation of
Green v. United States, supra,
by the Fourth Circuit Court of Appeals in the case of
Patton v. North Carolina,
381 F. 2d 636 (4th Cir. 1967), prohibited the State from seeking the death penalty at his retrial when he received life imprisonment at his first trial.
To here review, in depth, the pertinent principles of law would be unnecessary repetition since they have recently been clearly and fully stated by Sharp, J., in the case of
State v. Stafford,
274 N.C. 519, 164 S.E. 2d 371. There the Court, in rejecting the holdings of Patton,
inter alia,
stated:
All courts agree that when a defendant seeks a new trial by appealing his conviction he waives his protection against repros-ecution. “[I]t is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted.”
Ball v. United States,
163 U.S. 662, 672, 14 S. Ct. 1192, 1195, 41 L. Ed. 300, 303 (1896).
We reject the premise that a defendant who secures a new trial waives his right to protection from a retrial but retains a vested right in the vacated sentence as a ceiling.
In this case defendant was not convicted of the greater offense, nor did he receive increased punishment. Therefore, since there is no basis for this assignment of error, it is overruled.
Defendant by his second assignment of error contends that the trial court erred in admitting into evidence inculpatory statements purportedly made by him.
On the former appeal of this case this Court passed on the admissibility of the inculpatory statements purportedly made by defendant and in the opinion
(State v. Wright, supra), inter alia,
stated:
Therefore, the questions asked by the officers and the answers given by defendant relative to removal of the screen, entry of the Byrd home through the window, and touching the woman but not raping her, became competent evidence and were properly admitted for consideration by the jury.
In the case of
State v. Stone,
226 N.C. 97, 36 S.E. 2d 704, the defendant excepted to the refusal of the court to grant his motion for nonsuit. The exception had been before the Court on a former appeal
(State v. Stone,
224 N.C. 848, 32 S.E. 2d 651), and the Court in the second appeal stated:
These exceptions are untenable for the reason that this case was before the Court on a former appeal (cite omitted) and the Court then said: “We think the evidence sufficient to warrant its submission to the jury.” The evidence produced at this trial is substantially similar to the evidence produced at the former trial. Under these circumstances the question of non-suit, or the sufficiency of the evidence to be submitted to the jury, the decision of the Court on the former appeal is decisive.
S. v. Lee,
213 N.C. 319, 195 S.E. 785.
Accord:
State v. Peterson,
226 N.C. 770, 40 S.E. 2d 362;
Jernigan v. Jernigan,
207 N.C. 831, 178 S.E. 587. See also 5 Am. Jur. 2d, Appeal and Error, § 744, at 188
et seq.
The principle of “law of the case” has been specifically applied to inculpatory admissions of a defendant in other jurisdictions. The California Supreme Court considered this principle in the case of
People v. Modesto,
66 Cal. 2d 695, 59 Cal. Rptr. 124, 427 P. 2d 788. The Court’s decision concerning the application of the principle of “law of the case” is correctly stated in headnote four of the case as reported in the Pacific Reporter, viz:
Reconsideration of admissibility of defendant’s statements to police was precluded by doctrine of the law of the case where facts on which prior ruling was predicated remained unchanged.
In the case of
Pool v. Commonwealth,
308 Ky. 107, 213 S.W. 2d 603, the Court stated:
Appellant further contends that an error was committed in the admission of his written confession as legal evidence against himself on this trial. Under what is known as “the law of the case” rule, this written confession, just as it was set out at full length in our opinion on the first appeal, would not now be a proper subject of sound legal attack upon this second appeal.
See also
Bryant v. State,
197 Ga. 641, 30 S.E. 2d 259.
We have carefully compared the evidence relating to the admission of inculpatory statements made by defendant in the previous trial with that in this case and we find it to be substantially the same. If there be any variance, the difference favors the admissibility of the evidence.
Nevertheless, because of the serious nature of this case we have again carefully considered the merits of defendant’s contention. We find that upon his objection to the testimony relating to the inculpatory statements purportedly made by him, the trial judge properly held a
voir dire
hearing to determine whether the statements were in fact voluntarily and understandingly made.
State v. Conyers,
267 N.C. 618, 148 S.E. 2d 569;
State v. Rogers,
233 N.C. 390, 64 S.E. 2d 572. Both the State and defendant offered evidence on
voir dire
and at the conclusion of the
voir dire
hearing the trial judge made full findings of fact and concluded that defendant’s statements were “freely, voluntarily, knowingly and intelligently made.” There was competent evidence to support the findings of fact and these findings are binding on this Court.
State v. Gray,
268 N.C. 69, 150 S.E. 2d 1. The findings of fact support the con-
elusions of law. For the reasons stated, this assignment of error is overruled.
Defendant contends that the court erred in failing to grant his motion for judgment as of nonsuit.
In the case of
State v. Bogan,
266 N.C. 99, 145 S.E. 2d 374, it is stated:
“If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.”
State v. Johnson,
199 N.C. 429, 431, 154 S.E. 730, 731. This quotation, as Higgins, J., said in
State v. Stephens, supra,
is just “another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss.” 244 N.C. at 383, 93 S.E. 2d at 433. It does not mean that the evidence, in the court’s opinion, excludes every reasonable hypothesis of innocence. Should the court decide that the State has offered substantial evidence of defendant’s guilt, it then becomes a question for the jury whether this evidence establishes beyond a reasonable doubt that defendant, and no other person, committed the crime charged.
State v. Thompson,
256 N.C. 593, 124 S.E. 2d 728.
Here the evidence of the prosecuting witness and the medical expert is clearly sufficient to support a jury-finding that a rape had been committed on the prosecuting witness. The admissions by defendant that he removed the screens from the windows, entered the house occupied by the prosecuting witness and her family, and placed his hand upon the body of a woman, when considered with the evidence that the screens were removed and the house was entered on the night of the alleged rape, together with the circumstances of defendant’s arrest, are sufficient to permit, but not compel, a legitimate and reasonable inference that defendant was the person who committed the crime.
The trial court properly denied defendant’s motion for nonsuit.
Defendant urges that the trial judge committed prejudicial error by failing to instruct the jury as to the rule of circumstantial evidence. We do not agree.
Circumstantial evidence and direct evidence are defined in the case of
State v. Blackwelder,
182 N.C. 899, 109 S.E. 644, as follows:
Direct evidence is that which is immediately applied to the fact
to be proved, while circumstantial evidence is that which is indirectly applied by means of circumstances from which the existence of the principal fact may reasonably be deducted or inferred. In other words, as has been said, circumstantial evidence is merely direct evidence indirectly applied.
This Court considered the defendant's exception to the trial court’s failure to charge on circumstantial evidence in the case of
State v. Stevens,
244 N.C. 40, 92 S.E. 2d 409, and there stated:
The exception to the court’s failure to charge on circumstantial evidence cannot be sustained. The evidence in the case was largely direct. It consisted of the statements of the two men who actually committed the robbery. The circumstantial evidence offered was incidental to and in corroboration of the direct evidence. In the absence of special request, failure to charge with respect to circumstantial evidence was not error.
S. v. Bennett, 237
N.C. 749, 76 S.E. 2d 42.
Here the State’s evidence consisted mainly of direct evidence of the prosecuting witness and the inculpatory statements of defendant. The only circumstantial evidence offered was incidental and corroborative. Defendant did not request the trial judge to charge the jury as to circumstantial evidence.
In the trial of the case below we find
No error.