162 S.E.2d 526 (N.C.App. 1968), 68SC125, Parker v. State

Docket Nº:68SC125.
Citation:162 S.E.2d 526, 2 N.C.App. 27
Party Name:Charles Lee PARKER v. STATE of North Carolina.
Case Date:August 14, 1968
Court:Court of Appeals of North Carolina

Page 526

162 S.E.2d 526 (N.C.App. 1968)

2 N.C.App. 27

Charles Lee PARKER


STATE of North Carolina.

No. 68SC125.

Court of Appeals of North Carolina.

August 14, 1968

Page 527

[Copyrighted Material Omitted]

Page 528

T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.

Norman B. Smith, Smith, Moore, Smith, Schell & Hunter, Greensboro, for the petitioner.

PARKER, Justice.

At his post-conviction hearing petitioner introduced evidence tending to show a statistical disparity between the racial composition of the adult population of Halifax County as compared with the racial composition of the grand juries of the county at the time of his indictment and for a substantial period prior thereto. He contends that this evidence made a Prima facie case that members of his race had been systematically excluded from the grand jury which had indicted him, that the State had introduced no competent evidence to rebut such Prima facie case, and that the court's finding of fact to the effect that there had been no systematic exclusion of Negroes from such jury was not supported by competent evidence. In support of his contention petitioner cites: Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; State v. Lowry, 263 N.C. 536, 139 S.E.2d 870; State v. Wilson, 262 N.C. 419, 137 S.E.2d 109.

Under the criminal procedure of this State, however, objection to the grand jury is deemed waived unless raised in apt time by motion to quash the indictment. State v. Rorie, 258 N.C. 162, 128 S.E.2d 229. Such a motion may be made as a matter of right up to the time defendant is arraigned and enters his plea. The presiding judge as a matter of grace has discretionary power to permit the accused to make the motion to quash the indictment after his plea is entered and until the petit jury is sworn and impaneled to try the [2 N.C.App. 31] case on the merits. Thereafter the presiding judge has no power at all to entertain a motion to quash the indictment. Miller v. State, 237 N.C. 29, 74 S.E.2d 513. If the objection is raised in apt time, by making the motion to quash before entering a plea, a subsequent plea of guilty does not waive the objection. State v. Covington, 258 N.C. 501, 128 S.E.2d 827.

In the present case petitioner did not raise the objection prior to entering his plea of guilty. He raised it for the first time in the post-conviction proceedings commenced approximately three years after entry of his plea of guilty and the judgment sentencing him to life imprisonment. Under the established criminal procedure of this State, petitioner's objection comes too late. G.S. § 9--26.

It may be granted that petitioner, as many other defendants in criminal cases, was not familiar with the rules of criminal procedure. Nevertheless, such rules are necessary for an orderly administration of justice. It is precisely for the reason that defendants in criminal cases may not be familiar with all of their rights and the means of protecting them that we require they be represented by counsel. Petitioner here was represented by experienced and competent trial counsel employed by his family for that purpose.

'It is inherent in the judicial process that courts must deal with litigants as though they were acting in the persons of their attorneys. For this reason, the law confers upon the attorney for the defense in a criminal case the power to take such steps in matters of practice and procedure as he deems appropriate to protect the interests of the accused, and decrees that the accused is bound by his action as to those matters. * * * It necessarily follows that the attorney for the defense in a criminal action may waive a constitutional right of his client relating to a matter of practice or procedure. * * * The right of a Negro defendant to object to a grand or petit jury upon the ground of discrimination against members of his

Page 529

race in the selection of such jury is waived by failing to pursue the proper remedy.' Miller v. State, supra.

In conformity with the decisions of the Supreme Court of North Carolina, we hold that petitioner, acting through his employed attorney, waived any objection to the grand jury by his failure to move in apt time to quash the indictment. Petitioner cites, contra, McNeill v. State of North Carolina, 368 F.2d 313, a...

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