State v. House, 12

• Decision Date: 06 June 1978
• Docket Number: No. 12,12
• Citation: 295 N.C. 189,244 S.E.2d 654
• Parties: STATE of North Carolina v. Richard E. HOUSE.
• Court: North Carolina Supreme Court

Page 654

244 S.E.2d 654

295 N.C. 189

STATE of North Carolina v. Richard E. HOUSE.

No. 12.

Supreme Court of North Carolina.

June 6, 1978.

Rufus L. Edmisten, Atty. Gen. by Jane Rankin Thompson, Associate Atty. Gen., Raleigh, for the State.

T. S. Royster, and John H. Pike, Oxford, for defendant.

LAKE, Justice.

The defendant's contention that his motion to dismiss the bill of indictment should have been granted for the reason that it contains no attestation by the foreman of the grand jury that twelve or more grand jurors concurred in the finding of a true bill is without merit.

G.S. 15A-644 provides:

"Form and content of indictment, information or presentment. (a) An indictment must contain:

(1) The name of the superior court in which it is filed;

(2) The title of the action;

(3) Criminal charges pleaded as provided in Article 49 of this Chapter, Pleadings and Joinder;

(4) The signature of the solicitor, but its omission is not a fatal defect; and

(5) The signature of the foreman or acting foreman of the grand jury attesting the concurrence of 12 or more grand jurors in the finding of a true bill of indictment. " (Emphasis added.)

G.S. 15A-621, provides:

" 'Grand jury' defined. A grand jury is a body consisting of not less than 12 nor more than 18 persons, impaneled by a superior court and constituting a part of such court."

G.S. 15A-623 provides:

"Grand jury proceedings and operation in general. (a) The finding of an indictment, the return of a presentment, and every other affirmative official action or decision of the grand jury requires the concurrence of at least 12 members of the grand jury."

In the present case, the indictment bears the signature of the foreman of the grand jury beneath the statement that the bill was found "a true bill" and the witnesses whose names were marked with an "X" were sworn by the foreman and examined by the grand jury. Since the statute requires the concurrence of at least 12 members of the grand jury in order to find an indictment a true bill, the foreman's signature attesting that the grand jury found the indictment to be a true bill, necessarily attests the concurrence of at least 12 of its members in this finding.

Although it is better practice for the foreman's entry upon the bill of indictment, over his signature, to state expressly that 12 or more grand jurors concurred in such finding, since even a directory provision of a statute should be obeyed, this is not necessary to the validity of the bill of indictment where the foreman's statement upon the bill is clearly so intended and there is nothing to indicate the contrary.

G.S. 9-27 (now repealed) provided, "The foreman of the grand jury shall mark on the bill the names of the witnesses sworn and examined before the jury." (Emphasis added.) In this connection, the word "shall" is equivalent to the word "must," which is used in G.S. 15A-644. Nevertheless, in State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932), this Court, speaking through Justice George Connor, said, with reference to the contention that an indictment should be quashed for the failure of the foreman of the grand jury so to mark thereon the names of the witnesses examined by the grand jury, the foreman having signed the bill and returned it into court as "a true bill":

"The foreman of the grand jury is authorized by statute in this state to administer oaths and affirmations to persons whose names are endorsed on a bill of indictment as witnesses for the state. He is required to mark on the bill the names of such persons as are sworn by him, and examined before the grand jury. C.S., 2336. In S. v. Hollingsworth, 100 N.C. 535, 6 S.E. 417, it is said: 'The endorsements on the bill form no part of the indictment, and it has been held that the act of 1879 (now C.S. 2336) (subsequently, G.S. 9-27) requiring the foreman of the grand jury, when the oath is administered by him, to mark on the bill the names of the witnesses sworn and examined before the grand jury, is merely directory, and a noncompliance therewith is no ground for quashing the indictment. S. v. Hines, 84 N.C. 810. It constitutes ground neither for a motion to quash, nor in arrest of judgment.' "

In State v. Hines, 84 N.C. 810 (1881), speaking through Justice Ashe, this Court said:

"Before the act of 1879 (the former G.S. 9-27) * * * the omission to designate the witnesses who may have been sworn, by a + mark, was not sufficient to quash the bill. The fact that they were not sworn must have been established by proof offered by the defendant. * * *

"This principle we think has not been changed by the act of 1879, ch. 12, § 1, which * * * provides that the foreman should mark on the bill the names of the witnesses sworn and examined before the grand jury. We hold that this provision is merely directory, and that it is competent for the state, when the foreman has omitted to mark the witnesses sworn, to show by proof that they were sworn.

"In Massachusetts, they have an act of assembly (Rev.Statutes, ch. 136, § 9), which provides 'that a list of all witnesses sworn before the grand jury during the term shall be returned to the court under the hand of the foreman; and it has been there held that it is directory merely, and a noncompliance therewith is no ground for quashing an indictment.' Com. v. Edwards, 4 Gray (Mass.) 1."

In State v. Avant, supra, the failure of the foreman to mark the names of the witnesses examined by the grand jury, as directed by the statute, was brought to the attention of the court in time to permit this to be done while the grand jury was still present in the courtroom and this was permitted. However, in State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963), speaking through Justice Parker, later Chief Justice, this Court held that the above quoted provision of the old G.S. 9-27 was directory and not mandatory, and the bill of indictment should not be quashed because of such omission, even though it was not brought to the attention of the trial judge in time to permit such correction.

In State v. Calhoon, 18 N.C. 374 (1835), Chief Justice Ruffin, speaking for the Court, said:

"It is the practice for the foreman to sign his name to the finding of the grand jury; and it seems to be a salutary practice, as it tends to the more complete identification of the instrument containing the accusation. We do not know in what it had its origin; but though useful and proper, it does not seem to be essential, nor to have been, at any time, the course in England. * * * It is the grand jury's returning the bill into Court, and their publicly rendering their verdict on it, in the form 'a true bill,' and that being recorded or filed amongst the records of the Court, that makes it effectual."

In State v. Lancaster, 210 N.C. 584, 187 S.E. 802 (1936), the defendant contended that the indictment against him should be quashed, and the judgment pursuant to his conviction be arrested, for the reason that it did not appear by an endorsement of the foreman upon the indictment that any person whose name appeared on the back of the bill as a witness for the State had been sworn and testified before the grand jury. The court held that the motions to quash and in arrest of judgment were properly denied, saying in a Per Curiam opinion:

"The absence of such endorsement was not sufficient to overcome the presumption of the validity of the indictment arising from its return by the grand jury as a 'true bill.' * * * The provisions of (the old G.S. 9-27) with respect to the duty of the foreman of the grand jury, are directory, and not mandatory." 210 N.C. at 585, 187 S.E. at 802.

In 73 Am.Jur.2d, Statutes, § 19, it is said: "In determining the mandatory or directory nature of a statute, the importance of the provision involved may be taken into consideration. Generally speaking, those provisions which are a mere matter of form, or which are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done so that compliance is a matter of convenience rather than substance, are considered to be directory." To the same effect, see: 82 C.J.S. Statutes §§ 376, 380; 12 Strong, N.C. Index 3d, Statutes, § 5.3.

While, ordinarily, the word "must" and the word "shall," in a statute, are deemed to indicate a legislative intent to make the provision of the statute mandatory, and a failure to observe it fatal to the validity of the purported action, it is not necessarily so and the legislative intent is to be derived from a consideration of the entire statute. To interpret G.S. 15A-644 as requiring the quashing of a bill of indictment under the circumstances of this case would be to attribute to the Legislature an intent to paramount mere form over substance. This we decline to do.

The defendant's next contention is that it was error to deny his request that he, personally, be permitted to question prospective jurors on voir dire, and, subsequently, witnesses at the trial, in addition to questions propounded by his then counsel. There is no merit in this contention.

It is well settled that a defendant in a criminal action has a right to represent himself at the trial and cannot be required to accept the services of court-appointed counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976); State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); State v. McNeil, 263 N.C. 260, 139 S.E.2d 667 (1965); State v. Bines, 263 N.C. 48, 138 S.E.2d 797 (1964). It is, however, equally well settled that "(a) party has the right to appear in propria persona or by counsel, but this right is alternative," so that "(o)ne has no right to appear both by himself and by counsel." State v. Phillip, 261 N.C. 263, 268, 134 S.E.2d 386, 391 (1964); New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945); Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934). See also, State v. Robinson, supra....