State v. Brown

• Decision Date: 28 February 1945
• Docket Number: 73
• Citation: 33 S.E.2d 121,225 N.C. 22
• Parties: STATE v. BROWN.
• Court: North Carolina Supreme Court

33 S.E.2d 121

225 N.C. 22

STATE v. BROWN.

No. 73

Supreme Court of North Carolina

February 28, 1945

Criminal prosecution tried upon a warrant charging defendant with violating G.S. s 60-136, which statute regulates the occupancy of seats by white and colored passengers in street cars or other passenger vehicles or motor buses.

The warrant upon which defendant was tried in the Recorder's Court of Martin County read as follows: 'Lucile Bowen Brown did refuse, upon request of the driver in charge of Carolina Trailway Bus to move to an unoccupied seat toward or in the rear of said bus, did use indecent language in said bus and did resist said bus driver in the performance of his duties as bus driver and as police officer. Did also resist an officer of the Town of Robersonville in the performance of his duties as such officer. ' The warrant as amended in the Superior Court read: 'That the defendant, Lucile Bowen Brown, on the 14th day of July, 1944, being a colored passenger on a certain motor bus of the Carolina Trailways did unlawfully and wilfully refuse to move to an unoccupied seat toward and in the rear of said bus, when requested so to do by the driver and person in charge of the bus, in order and when necessary to carry out the purpose of providing separate seats for white and colored passengers, contrary to the form of the Statute made and provided and against the peace and dignity of the State.'

In the trial below the State offered evidence tending to show these facts: On July 14, 1944, the defendant, a colored person, and her sister-in-law were passengers on a bus of the Carolina Trailways, operating from Williamston to Raleigh, N. C. When the bus reached Robersonville and the passengers had alighted, there were five vacant seats back of the defendant and her sister-in-law, towards the rear of the bus. There were only two vacant seats in front of the defendant, towards the front of the bus. There were five white passengers waiting to get on the bus. The driver requested the colored passengers to move to the rear of the bus. All the colored passengers moved back except the defendant, who refused to do so. The driver in charge of the bus requested an officer of the Town of Robersonville to remove the defendant from the bus. The defendant refused to leave and resisted removal whereupon the officer summoned help and she was evicted by force.

Verdict Guilty. From judgment imposing a fine of $25, defendant appeals to the Supreme Court, assigning errors.

Harry McMullan, Atty. Gen., H. J. Rhodes and Ralph Moody, Asst. Attys. Gen., for the State.

P. H. Bell, of Plymouth, for defendant.

DENNY Justice.

The defendant was convicted in the Recorder's Court of Martin County upon a warrant containing two counts. The first count charged a violation of G.S. s 60-136, and the second resisting an officer. From judgment entered upon both counts, the defendant appealed to the Superior Court.

At the trial in the Superior Court, when the State rested, the defendant moved for judgment as of nonsuit. The motion was allowed as to the count for resisting arrest, but was denied as to the charge under G.S. s 60-136. The defendant excepted. The defendant offered evidence but did not go upon the stand herself. At the close of all the evidence, defendant renewed her motion for judgment as of nonsuit. The motion was denied and defendant again excepted.

After the motion for judgment as of nonsuit had been renewed and denied, the solicitor moved to amend the warrant to conform to the requirements of the statute. The motion was allowed and the defendant excepted.

The foregoing exceptions constitute the basis of appellant's first three assignments of error. The appellant contends that at the time the motion for judgment as of nonsuit was made the only criminal charge before the Court was the count in the warrant charging the defendant with resisting an officer, and when the motion was allowed on that count there was no criminal charge pending against her. Consequently, the appellant contends, it was error to deny the motion for judgment as of nonsuit and thereafter allow the State to amend the warrant. We do not concur in this view.

It is well settled by this Court, that the power of the Superior Court to allow amendments to warrants is very comprehensive. State v. Wilson, 221 N.C. 365, 20 S.E.2d 273; State v. Holt, 195 N.C. 240, 135 S.E. 585; State v. Mills, 181 N.C. 530, 106 S.E. 677; State v Price, 175 N.C. 804, 95 S.E. 478; State v. Smith, 103 N.C. 410, 9 S.E. 200. A warrant cannot be amended so as to charge a different offense. State v. Clegg, 214 N.C. 675, 200 S.E. 371; State v. Goff, 205 N.C. 545, 172 S.E. 407. However, the Superior Court, under our statute, G.S. s 7-149, Rule 12, may allow, within the...