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STATE v. CASE

No. 84.

150 S.E.2d 509 (1966)

268 N.C. 330

STATE of North Carolina v. James Weaver CASE, Jr.

Supreme Court of North Carolina.

October 19, 1966.

Attorney(s) appearing for the Case

T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., and Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.

Melvin K. Elias, Asheville, for defendant appellant.

SHARP, Justice.

When, in either a post-conviction hearing or a habeas corpus proceeding, at the prisoner's request, the court vacates a judgment against him and directs a new trial, the prisoner waives his constitutional protection against double jeopardy, and he may be tried anew on the same indictment for the same offense. In such case, a plea of former jeopardy will avail him nothing. State v. Hollars, 266 N.C. 45,

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