State v. Trimble

• Decision Date: 05 February 1980
• Docket Number: No. 7929SC482,7929SC482
• Citation: 262 S.E.2d 299,44 N.C.App. 659
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Robert TRIMBLE.

Page 299

262 S.E.2d 299

44 N.C.App. 659

STATE of North Carolina v. Robert TRIMBLE.

No. 7929SC482.

Court of Appeals of North Carolina.

Feb. 5, 1980.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Rebecca R. Bevacqua, Raleigh, for the State.

Prince, Youngblood, Massagee & Creekman by James E. Creekman, Hendersonville, for defendant-appellant.

CLARK, Judge.

I. Elements of the Offense

Appellant was convicted under N.C.Gen.Stat. § 14-401, which statute provides as follows:

" § 14-401. Putting poisonous foodstuffs, etc., in certain public places, prohibited It shall be unlawful for any person, firm or corporation to put or place any strychnine, other poisonous compounds or ground glass on any beef or other foodstuffs of any kind in any public square, street, lane, alley or on any lot in any village, town or city or on any public road, open field, woods or yard in the country. Any person, firm or corporation who violates the provisions of this section shall be liable in damages to the person injured thereby and also shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, at the discretion of the court. This section shall not apply to the poisoning of insects or worms for the purpose of protecting crops or gardens by spraying plants, crops or trees nor to poisons used in rat extermination." (Emphasis supplied.)

Appellant argues that the above-underlined exception for rat extermination and insect control constitutes an element of the offense which is not set forth in the arrest warrant as required by N.C.Gen.Stat. § 15A-924(a)(5), and that therefore the charges must be dismissed pursuant to N.C.Gen.Stat. § 15A-924(e) and § 15A-954(a)(10).

We are hesitant to define an exception in a statutory definition of a crime as an element of that crime. Appellant's seemingly simple contention is replete with subtle but significant procedural due process questions left unresolved by the United States Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), concerning the proper interrelationships between the definition of a crime, defenses thereto, the respective burdens of proof and ultimate criminal liability. ¹

Our concern is that a purely formalistic or procedural approach to defining elements and assigning burdens of proof (X is an element of the crime therefore S has the burden of proof) may disregard federal and state due process and law of the land, respectively, limitations on substantive criminal law, such as that enunciated in In re Winship, supra, that the accused is protected "against conviction except upon proof beyond a reasonable doubt of Every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364, 90 S.Ct. at 1073 (emphasis supplied). In essence, following a purely formalistic approach would allow the General Assembly "to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime." Patterson v. New York, 432 U.S. at 223, 97 S.Ct. at 2333 (Powell, J., dissenting). ²

In the instant case we are not troubled by the possibility that the General Assembly, in enacting N.C.Gen.Stat. § 14-401 has gone beyond the constitutional limits established by In re Winship, supra, and we recognize that legislatures do have considerable latitude in defining elements of a crime and in specifying defenses to that crime, Patterson, supra, 432 U.S. at 210, 97 S.Ct. at 2327; rather, our attention is directed to our concern that we do not artificially analyze the problem and thereby set a precedent for future cases where the General Assembly might define a crime in such a way as to place an egregious burden of proof on the defendant. Equally important, we find that where, as in the instant case, the General Assembly has left open the question of whether a factor is to be an element of the crime or a defense thereto, it is more substantively reasonable to ask what would be a "fair" allocation of the burden of proof, in light of due process and practical considerations, and then assign as "elements" and "defenses" accordingly, rather than to mechanically hold that a criminal liability factor is an element without regard to the implications in respect to the burden of proof.

In light of these considerations we hold that the insect control and rat extermination exception in N.C.Gen.Stat. § 14-401 is neither an element of the crime nor an affirmative defense thereto but is instead a "hybrid" factor in determining criminal liability: the State has no initial burden of producing evidence to show that defendant's actions do not fall within the exception; however, once the defendant, in a non-frivolous manner, puts forth evidence to show that his conduct is within this exception, the burden of persuading the trier of fact that the exception does not apply falls upon the State. In sum we are not convinced that the exception is a sufficiently "independent, distinct substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself," State v. Johnson, 229 N.C. 701, 706, 51 S.E.2d 186 (1949), to put all the "onus" of proof on the defendant, Id.; State v. Connor, 142 N.C. (Biggs) 700, 704-05, 55 S.E. 787 (1906).

With respect to the precise question before us, it follows from this reasoning that an indictment or warrant for an arrest need not set forth a charge that defendant's conduct is not within the exception to the statute. State v. Johnson, supra.

We note that in the case Sub judice, the trial court placed the entire burden of proof on the State to show that the defendant placed the poison food out for "purposes other than poisoning insects or worms for the production of crops, plants or trees or for the extermination of rats." This charge is entirely consistent with this opinion. We see no actual prejudice to defendant by the omission of a "not within the exception" statement in the indictment, even if such a statement were required, since the warrant sufficiently apprised defendant of the crime for which he was charged, N.C.Gen.Stat. § 15A-924(a)(5), and the State carried the entire burden of proof on the exception.

II. Vagueness

We find no merit in defendant's contention that the N.C.Gen.Stat. § 14-401 is unconstitutionally vague. We also hold that the language, "in any public square, street, lane, alley, or on any lot in any village, town or city or on any public road, open field, woods or yard in the country" was sufficiently broad to indicate that the General Assembly prohibited putting poison outside virtually everywhere where an innocent child or animal could find it, and that defendant's concrete patio comes within this definition. Similarly, we...