¶1 The defendant’s plea of former jeopardy cannot be sustained. The defendant does not question the serious illness of the juror at the October Term of the court nor that the mistrial was ordered before any evidence had been presented.
¶2 “Our court has frequently held that in all cases less than capital the court has discretion to order a mistrial and discharge a jury before verdict in furtherance of justice and the court need not find facts constituting the necessity for such discharge, and ordinarily the action is not reviewable. Such action by the judge is reviewablé only in case of gross abuse of discretion.” S. v. Guice, 201 N.C. 761, 161 S.E. 533; S. v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838.
¶3 The indictment charges that the first conviction of the defendant was in the Gastonia Municipal Recorder’s Court. This is true and that court had jurisdiction over a first offense of escape. Upon his conviction there, he appealed to the Superior Court of Gaston County and was again convicted upon the same charge. That trial and conviction superseded the trial in the Recorder’s Court and the bill would, therefore, not support a conviction of a second offense of escape. However, there was ample evidence to support a conviction of an escape, a misdemeanor, and the defendant may be sentenced therefor. It would not support a charge of felonious escape and the judgment pronounced upon it is hereby set aside. The cause is remanded to the Superior Court of Gaston County for appropriate judgment on the misdemeanor.
¶4 Remanded.