State v. Boykin

• Decision Date: 07 April 1937
• Docket Number: 292.
• Parties: STATE v. BOYKIN.
• Court: North Carolina Supreme Court

191 S.E. 18

211 N.C. 407

STATE v. BOYKIN.

No. 292.

Supreme Court of North Carolina

April 7, 1937

Appeal from Superior Court, Pitt County; Clawson L. Williams, Judge.

Clifton Boykin was convicted of unlawfully and willfully operating a motor vehicle on a public highway in a careless and reckless manner, and he appeals.

No error.

The following warrant, duly sworn to, was issued by the recorder's court of Pitt county: "That at and in said county, on or about the 11th day of June, 1936, Clifton Boykin did unlawfully and wilfully operate a motor vehicle on the public highway of this State in a careless and reckless manner against the form of the statute in such case made and provided, and contrary to the law and against the peace and dignity of the State."

On the trial in the recorder's court, the defendant was found guilty and judgment pronounced. The defendant appealed to the superior court. The defendant again pleaded not guilty and was tried before a jury. The jury returned a verdict of guilty. Defendant made a motion for a new trial on newly discovered evidence and filed affidavits in support of same. The court denied the motion.

In the record is the following:

"Thereupon defendant moved for a new trial and for arrest of judgment as a matter of law, for that this Special Term of Court was not authorized or created as provided by statute and is without jurisdiction to function and, therefore, all of its acts are void, for that the requisites of the statute with respect to special terms have not been complied with in that the provisions of C.S. § 1452, have not been complied with, for that this term of court was not advertised at the courthouse door and one public place in each township in Pitt County, or, in lieu thereof, in any newspaper published in Pitt County once a week for two weeks; and requested the Court to find the facts

with respect to the advertisement for said Court, and thereupon, the Court found the facts as follows:

1. That the Board of County Commissioners of the County of Pitt, State of North Carolina, at its regular session duly called and held on the 5th day of November, 1936, duly adopted and passed a resolution requesting the Governor to call a Special Term of Superior Court for Pitt County North Carolina, for the trial of criminal cases beginning Monday, January 25th, 1937, as it appears from the resolution offered in evidence and from the Minutes of said Board.

2. That his Excellency, Honorable J. C. B. Ehringhaus, Governor of North Carolina, duly called and issued a commission for said court, as appears from the letter and commission to the undersigned Judge holding the same, bearing date of November 10th, 1936, which is recorded in the Minutes of the proceedings of this court.

3. That at the meeting of the Board of County Commissioners held on November 5, 1936, said Board ordered that a jury be drawn for said Special Term of Court for the trial of criminal cases and thereafter at the regular meeting of said Board duly organized and held on the 7th day of December, 1936, the jury was duly drawn and summoned and appeared for service at said Special Term on Monday, January 25th, 1937.

4. That a reference to the Daily Reflector shows that it contained in its news items, said Reflector being a newspaper published and having general circulation throughout Pitt County, North Carolina, under date of January the 5th and 11th, 1937, reference to the term of court beginning January the 25th, 1937, likewise in its edition of January the 15th and 18th, and that in the issue appearing under date of January 15th, a calendar of the cases set for trial at said term was published; that subsequently the same notice appeared in the Daily News Letter, said reference being news items.

5. That the County Attorney, Clerk of the Superior Court and Clerk of the Board of County Commissioners of Pitt County did not publish any special notice of the convening of said Special Term of Court in any newspaper published in the county for two weeks, nor at the courthouse door and one other public place in each township in the county and knew of no such notice having been published; that in the issue of November the 11th, 1936, of the Daily Reflector, a newspaper hereinbefore referred to, appears a notice of a Special Term for the trial of criminal cases beginning January 25th as a news item.

6. That said court was convened and organized on Monday, January 25th, for the transaction of business, and on Monday, January the 25th, this case was duly reached in regular order and called for trial; counsel for defendant pleaded not guilty; a jury was duly sworn and empanelled, evidence heard and a verdict duly returned finding the defendant guilty, as appears in the record; that thereupon motion for judgment upon the verdict was continued to be heard at the convenience of the court later in the term and came on for hearing Saturday at noon, whereupon the above motions were made.

The Court being of the opinion that the records show that the term was duly called and held, as provided by the statute, Sections 1450-52-56, regulating the holding of a Special Term of Court, and that the provisions as set out in Section 1452 is not mandatory, and that the failure to make such advertisement as set out in Finding No. 5 above does not invalidate the authority of the Court, and it is considered, ordered and adjudged that said motions be denied and dismissed."

To the refusal and denial of said motion in arrest of judgment for the causes assigned, the defendant in apt time excepted and assigned error. The court pronounced judgment on the verdict: "That defendant be confined in the common jail of Pitt County for ninety days and assigned to work the public roads under the supervision of the State Highway and Public Works Commission, and that he pay a fine of Two Hundred and Fifty Dollars. And further ordered that defendant's license to operate a motor car be revoked for one year, to run from the trial had in the County Court."

To the foregoing judgment the defendant excepted and assigned error and appealed to the Supreme Court.

The evidence on the part of the State, in part: H. B. Smith testified as follows: "I am a Patrolman. I saw the defendant on the 11th of June, 1936, on the date of that warrant, out here in front of the College. I had just started out on the Washington highway, and at that time they were working on the streets and right along there there was a one-way drive. I saw this car cut through there in a careless manner. He overtook two cars and went right on through, and there were several men working there on the side of the street and the street was blocked. I turned around to overtake him and he cut across to Fourth from Fifth and I pulled up by him at Flannigan's corner. I pulled up beside him and asked him for his operator's license and warned him about his driving. At that moment I saw sacks spread over something. He threw his car in second gear and I followed him and motioned him to pull over but he went down through several red lights across Evans Street on out to Fourth, and cut back to the highway. I was following him. At the end of Fourth Street-they had just finished paving that street-and I could smell whiskey. I chased him to the Pinetops cross-roads and there he hit a dirt road. I called Wilson and told him it was a dark Oldsmobile, one man driving. I came back to Greenville. I later swore out a warrant and went over to identify him and I saw Robert Boykin. The second time I went I saw another Boykin. A capias was sent over there and he came over here to the patrol office and I told him what he was wanted for. I identified the man. The defendant is the man. As to his speed, witness replied, 'He left me and I was making between 80 and 85 miles an hour, he outran me.' That was on Fourth Street; his speed was in excess of 30 miles an hour, I would say between 50 and 55 miles an hour. I drove up by him at Cotanch and Fourth Streets in Greenville. I had an opportunity to observe him. I don't remember whether I asked anything or not before he drove off. But after he stepped on the gas I pulled up beside him. He looked me in the face and seemed not to understand me. I could not say how fast he came over to the road under construction. That is what attracted my attention to him. I reported to the officers that he was driving an Oldsmobile-the same class as an Oldsmobile. Those cars-a new Buick and New Oldsmobile-are very similar."

There was evidence corroborating the above witness. The defendant denied his guilt and set up an alibi.

A. O. Dickens, of Wilson, and Albion Dunn, of Greenville, for appellant.

A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.

CLARKSON Justice.

H. B Smith, on cross-examination by defendant, was asked: "Why did you not swear out that warrant until the 23rd, if it happened on the 11th?" He replied: "I did not know the man's name. I did not know he lived in Wilson until I went to Wilson." Question: "Who suggested Clifton Boykin was the man?" Answer: "One of his confederates." Question: "What was his name? Where did the man live that told you that?" To the above questions the State objected. The objection was sustained and defendant excepted and...