State v. Hayes, 661

• Decision Date: 22 May 1968
• Docket Number: No. 661,661
• Citation: 273 N.C. 712,161 S.E.2d 185
• Parties: STATE, v. Burley Edward HAYES.
• Court: North Carolina Supreme Court

Page 185

161 S.E.2d 185

273 N.C. 712

STATE, v. Burley Edward HAYES.

No. 661.

Supreme Court of North Carolina.

May 22, 1968.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwyn, for the State.

Cahoon & Swisher, by James L. Swisher, Greensboro, for defendant appellant.

PARKER, Chief Justice.

Before pleading to the indictment, defendant moved to quash it. The defendant contends that the first two counts in the indictment charge the commission of felonies, while the third count in the indictment charges the commission of a misdemeanor; and that the Municipal-County Court of the city of Greensboro has original exclusive jurisdiction over misdemeanors, and, consequently, the indictment should be quashed. This assignment of error is overruled. The third count in the indictment charges a violation of G.S. § 20--105, which is a misdemeanor. So far as the record before us discloses, the criminal prosecution here on all three counts was upon an indictment which originated in the Superior Court of Guilford County. The Municipal-County Court, Criminal Division, Greensboro, Guilford County, has 'original, exclusive and final jurisdiction' over a violation of G.S. § 20--105 committed in the city of Greensboro. Any jurisdiction the Superior Court of Guilford County obtains for a violation of G.S. § 20--105 must be derivative. 1955 Session Laws, Ch. 971, sec. 3(a) and (b)(1). State v. Covington, 267 N.C. 292, 148 S.E.2d 138. The Superior Court of Guilford County under the circumstances here had no jurisdiction to try defendant for a violation of G.S. § 20--105. State v. Covington, supra. So far as the record before us discloses, the jury found by its verdict that defendant was 'Guilty of Larceny as charged in the Bill of Indictment in Count One,' and did not refer in its verdict to counts two and three in the indictment. The verdict in the case amounts to a verdict of acquittal on counts two and three in the indictment. State v. Broome, 269 N.C. 661, 153 S.E.2d 384; State v. Choate, 228 N.C. 491, 46 S.E.2d 476; 3 Strong, N.C. Index 2d, Criminal Law, § 124.

The Superior Court of Guilford County had original jurisdiction over the offense of larceny of an automobile of the value of $1,200 as charged in the first count in the indictment, and to impose sentence upon conviction. State v. Cooper, 256 N.C. 372, 124 S.E.2d 91. The first count in the indictment charges all the essential elements of larceny of an automobile of the value of $1,200 and empowered the court to render judgment upon conviction upon the first count in the indictment. Therefore, defendant's motion to quash the indictment in its entirety was properly overruled. State v. Anderson, 265 N.C. 548, 144 S.E.2d 581; Commonwealth v. Nichols, 134 Mass. 531; Tyson v. People, 116 N.Y.S.2d 394; Hardison v. State, 226 Md. 53, 172 A.2d 407; 27 Am.Jur., Indictments and Informations § 129.

A summary of the State's evidence tends to show the following facts: On 26 July 1967 Bamby Bakers, Inc., owned a 1964 Chevrolet, four-door sedan, color aqua, serial No. 41869C166379, which at that time had a value of about $1,400. On the afternoon of that day this automobile was in its regular assigned parking place when it was feloniously taken and carried away. Defendant was not in any way connected with Bamby Bakers, Inc., and had no authority to drive the automobile away. That day the Greensboro Police Department was notified the automobile was missing and put out 'an alert' on the air for the automobile.

W. Y. Herndon, Jr., is an officer of the Virginia State Police assigned to Mecklenburg County, Virginia, which embraces the south central part of Virginia and also Interstate Highway #85 as it comes into Virginia. On 27 July 1967, in response to a radio transmission, Herndon proceeded to the scene of an automobile wreck two miles south of Bracey, Virginia, and two and four-tenths miles north of the North Carolina State line on Interstate Highway #85, where he found a crashed automobile. The crashed automobile was a 1964 Chevrolet sedan, aqua in color, bearing serial No. 41869C166379. The automobile was damaged on the left front fender and the left rear fender and was sitting on the right side of the highway. Several people were gathered at the scene. He asked who was the operator of the automobile. Defendant Burley Hayes stepped forward. Herndon asked him for his operator's license and his registration to the automobile, and defendant replied that he did not have an operator's license and that the automobile was his sister's. Herndon asked him his sister's name, and he replied, Juanita Hayes.

At this point defendant's counsel objected for the reason that there had been no evidence of defendant's having been advised of his rights. Whereupon, the court excused the jury from the courtroom. In its absence Herndon testified in summary: After the defendant said the car belonged to his sister, Herndon wrote down the name, Juanita Hayes, which defendant had given him. Defendant did not tell him his sister's address. At that point defendant said: 'I might as well tell you the truth now, I stole the car.' At that time Herndon did not know that the automobile had been stolen. After defendant said he stole it, Herndon asked him where he got the automobile, and defendant replied, Greensboro. Herndon immediately took him before a justice of the peace and secured a warrant charging him with being a fugitive from justice. While they were in the justice of the peace's office, defendant voluntarily told Herndon that he had stolen the car because he wanted to go back to prison. He said he had friends in there, and he had none on the outside; and, if they turned him loose from this, he would do the same thing again until they took him back to prison. These statements by defendant were not made in response to questions asked him by Herndon who had in fact asked him no questions on this occasion. Herndon testified on cross-examination in the absence of the jury that he did not advise defendant that he had a right to remain silent, that he had a right to an attorney, that any statements he made could be used against him in a court of law, nor of any of his constitutional rights. After the warrant was served on defendant, another State trooper picked him up and took him to the county jail. On redirect examination Herndon testified that when defendant told him that the automobile was stolen, he went to the glove compartment and found a registration card stating that the automobile belonged to Bamby Bakers, Inc., of Greensboro.

At this time the jury returned to the courtroom, and Herndon testified in response to questions by the State, each question being objected to by defendant's counsel, that when defendant told him the automobile belonged to his sister, Juanita Hayes, Herndon asked him for her address, to which the defendant replied, 'I might as well tell you the truth now, I stole the car.' After defendant made that statement, Herndon looked into the glove compartment and saw that the car was registered to Bamby Bakers, Inc., Greensboro, North Carolina.

Upon his arrival at the scene of the automobile wreck, the Virginia State Policeman, Herndon, did not interrogate defendant at all, but simply asked the crowd generally who was the driver of the car, whereupon defendant stepped forward. When Herndon asked him for his driver's license, defendant replied that he did not have one and that the automobile belonged to his sister. When Herndon asked defendant the address of his sister, defendant responded by confessing to the crime of which he stands convicted by the lower court.

H. L. Purcell is a police officer in Greensboro. In response to a report that defendant had been picked up by the Virginia State Police, he went to Virginia and served a warrant on Burley Hayes and returned him to North Carolina. This was after he waived extradition.

This is a brief summary of defendant's testimony: About 5:30 p.m. on 26 July 1967 defendant went to the bus station to return to Pageland, South Carolina, where he was working. He could not get a bus until 10:29 p.m., so he sat around the bus station, drank coffee, and took a couple of drinks of whiskey. When he was in the bus station he met four boys he used to run around with after he came out of prison. They all went to the bathroom and took a drink, and these four boys asked him if he would go with them to Virginia. They said they had an automobile. It was a green Chevrolet automobile. They left the bus station around 9:30 p.m. and traveled out to Interstate Highway #85. They stopped at a Gulf station and he bought gas. He traveled with the four boys all night. When they were approximately two miles from the Virginia line, they stopped at a Gulf station. He had not driven the car prior to that time. When they left the filling station, he started driving. When they crossed into Virginia, he was asked to stop the automobile so another boy could drive it. When he started to stop, he was going about 90 to 95 miles an hour and when he hit the brakes, the car started skidding and struck a guard rail. He had been drinking heavily all night. He threw a .32 automatic and a half-gallon of white whiskey in the river right where the automobile was wrecked. He did not know the automobile had been stolen when he started to drive it. He did not steal the automobile. He never told the officer that the automobile belonged to his sister. He did not tell the officer that he stole the automobile. He never told the officer that he wanted to go back to prison. Defendant stated in brief summary on cross-examination: The .32 automatic pistol that he was talking about is his. He carries a pistol and white lightning seven days of the week when he is in the street. He stated the police officers carry a gun and white lightning, and he feels like he can carry them just like they do. He thinks that he was convicted of larceny on 22 September 1960, he was convicted of...