State v. Goldberg, 433

Decision Date31 January 1964
Docket NumberNo. 433,433
Citation134 S.E.2d 334,261 N.C. 181
PartiesSTATE of North Carolina v. Dave Louis GOLDBERG and Steve Lekometros.
CourtNorth Carolina Supreme Court

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

Newsom, Graham, Strayhorn & Hedrick, Durham, Bunn, Hatch, Little & Bunn, E. Richard Jones, Jr., Raleigh, and Josiah S. Murray, III, Durham, for defendant appellants.

PARKER, Justice.

Before pleading to the eight indictments, defendants Goldberg and Lekometros filed eight separate verified written motions to quash the indictments. Each motion alleges in identical words the same ground to quash, except as to the number of the indictment, and this is the allegation:

'These defendants, Dave Louis Goldberg and Steve Lekometros aver that Bill of Indictment Number 8139 in this cause returned by the Grand Jury was, according to their information and belief, obtained upon incompetent evidence, to wit: hearsay testimony of W. S. Hunt, Jr., Agent of the State Bureau of Investigation, Raleigh, North Carolina. That said indictment returned against the two above-named defendants was solely upon the testimony of W. S. Hunt, Jr. That these defendants have never at any time discussed with W. S. Hunt, Jr., the charges pending against them.'

Each motion requests that it be treated as an affidavit. Defendants here offered no other evidence on their motions to quash. The trial court denied each motion, and the defendants here excepted to each denial and assign this as error.

Each indictment set forth in the record indicates that William S. Hunt, Jr., was the only witness sworn by the foreman of the grand jury and examined before it, and that the indictment was returned a true bill. In this State the foreman of every duly organized grand jury has the power to administer oaths to persons to be examined before it as witnesses. G.S. § 9-27. Defendants here do not suggest or state that Hunt personally was disqualified to be a witness before the grand jury; they merely state that according to their information and belief his testimony was hearsay, and they have never at anytime discussed with him the charges pending against them. In State v. Levy, 200 N.C. 586, 158 S.E. 94, Adams, J., for the Court points out the distinction between incompetent evidence and testimony of disqualified witnesses before a grand jury. There is no allegation in defendants' motions that none of the co-conspirators charged in all the indictments with the defendants here had not discussed the charges pending against these defendants with Hunt, or that he had not overheard them talking about the alleged conspiracy in furtherance of the alleged conspiracy and during its pendency. The evidence for the State shows that defendants here and others of their alleged co-conspirators were registered in the Sir Walter Hotel on 9 February 1960 to see the N. C. State-Duke game, and in the hotel they had a conversation about this game, in which conversation Joseph Eugene Greene said he neecded some money to give Donald M. Gallagher, a player of the N. C. State basketball team, before the game, and either Lekometros or Goldberg gave Greene a thousand dollars to give Gallagher on the day of this game. Defendants contend that the failure of the State to call Hunt as a witness during the trial demonstrates that all Hunt's testimony before the grand jury was hearsay. This is a non sequitur; the State may have thought it had sufficient evidence without calling Hunt as a witness during the trial or it may have deemed it proper to keep Hunt off the stand during the trial so as not to disclose how he obtained his information in respect to the charges in the indictments. Defendants have not shown that all the knowledge Hunt had of these cases was incompetent as evidence.

It is a well-settled principle of law in this State that an indictment will not be quashed, on a motion made in apt time, when some of the testimony before the grand jury given by a witness who is not disqualified is competent and some incompetent, because a court will not go into the barren inquiry of how far testimony which was incompetent contributed to the finding of an indictment as a true bill. State v. Choate, 228 N.C. 491, 46 S.E.2d 476. See also 37 N.C.L.R. 309.

Defendants here contend that the failure to quash the indictments violated their rights under the Fifth Amendment to the United States Constitution. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, Costello was indicted by a grand jury on a charge of wilfully attempting to evade payment of income taxes; the indictment was based solely upon the evidence of government witnesses having no firsthand knowledge of the transactions upon which they based their computations showing that Costello and his wife had received far greater income than they had reported. Costello was convicted and challenged his conviction on the ground that the indictment was based solely on hearsay evidence and for that reason should have been dismissed. The Supreme Court unanimously held that the indictment was valid. In an opinion by Mr. Justice Black, six members of the Court rested the decision on the ground that neither the Fifth Amendment, in making a grand jury indictment a prerequisite of a federal trial for a capital or otherwise infamous trial, nor justice and the concept of a fair trial, required that indictments be open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury. Mr. Justice Black in his opinion said:

'If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.'

The assignment of error to the failure of the trial court to quash the indictments is overruled.

Defendants' first assignment of error is:

'The trial Court committed prejudicial and reversible error by denying the defendants' petition for the State Bureau of Investigation to show cause why the reports of the investigations bearing all the indictments listed herein should not be made available to the petitioners for the reason that such investigations and reports were complied by the State Bureau of Investigations against the petitioners without their knowledge or information. That in order to be prepared to prepare a defense against the charges against them the petitioners were entitled to examine said reports and investigation by authority of North Carolina General Statutes 114-15. That the denial of the trial Court to make such reports and investigation available to these defendants amounts to a violation of their rights guaranteed in Article I, Section 11 and Section 17 of the Constitution of the State of North Carolina, and their rights as guaranteed by the Fifth Amendment, Sixth Amendment, Seventh Amendment and Fourteenth Amendment to the Constitution of the United States of America.'

G.S. § 114-15 appears in G.S., Ch. 114, Department of Justice, under Art. 4, State Bureau of Investigation. G.S. § 114-15 empowers the Director of the State Bureau of Investigation and his assistants, under certain circumstances, to investigate any crime committed anywhere in the State, when such services may be rendered with advantage to the enforcement of the criminal law. G.S. § 114-15 specifically states:

'All records and evidence collected and compiled by the Director of the Bureau and his assistants shall not be considered public records within the meaning of § 132-1, and following, of the General Statutes of North Carolina and may be made available to the public only upon an order of a court of competent jurisdiction. Provided that all records and evidence collected and compiled by the Director of the Bureau and his assistants shall, upon request, be made available to the solicitor of any district if the same concerns persons or investigations in his district.'

Defendants here in their petition allege that 'in order that they be prepared to defend against the charges pending against them, it is necessary that said report of investigation prepared by the State Bureau of Investigation pertaining to the petitioners herein be made available to the petitioners as authorized and contemplated' by G.S. § 114-15. The record shows no member of the State Bureau of Investigation testified during the trial. Defendants in their brief do not contend anything in the files of the Bureau was admitted in evidence against them. Defendants are not seeking an inspection of any documents or articles which form the basis of the charges against them and which are admissible in evidence, e. g., when a defendant is charged with forgery and requests an inspection of the alleged forged document, 23 C.J.S. Criminal Law § 955(2) b, pp. 793-794. What they are seeking is an order permitting them before trial to go on a word-by-word and line-by-line and unlimited voyage of discovery through the files of the State Bureau of Investigation in respect to these cases here, without any allegation on their part that anything therein is the basis of the charges against them and is admissible in evidence against them, in the fervent hope that something might turn up to benefit them, or that thereby they might obtain an inspection of the State's evidence. In the absence of statutes or rules of practice providing otherwise, it is generally held that a defendant is not entitled under such circumstances to an order of...

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