State v. Bryant

• Decision Date: 20 October 1971
• Docket Number: No. 7110SC660,7110SC660
• Citation: 12 N.C.App. 530,183 S.E.2d 824
• Parties: STATE of North Carolina v. Joe BRYANT et al.
• Court: North Carolina Court of Appeals

Page 824

183 S.E.2d 824

12 N.C.App. 530

STATE of North Carolina v. Joe BRYANT et al.

No. 7110SC660.

Court of Appeals of North Carolina.

Oct. 20, 1971 Certiorari Allowed by Supreme Court Dec. 9, 1971.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Christine Denson, for the State.

Smith & Patterson by Norman B. Smith and Michael K. Curtis, Greensboro, for defendant appellants Joe Bryant, John Knoll and Don Childs.

Earl B. Purser, Raleigh, for defendant appellant B. R. Queen.

MORRIS, Judge.

From the outset it should be noted that the present prosecution was under North Carolina's old obscenity statutes G.S. § 14--189 and G.S. § 14--189.1 which were repealed by the General Assembly 1 July 1971 and replaced by G.S. § 14--190.1 et seq. In State v. McCluney, 11 N.C.App. 11, 180 S.E.2d 419 (1971), this Court held that G.S. § 14--189.1 was free from constitutional defect.

G.S. § 15--180 provides that 'In all cases of conviction in the superior court for any criminal offense, the defendant shall have the right to appeal'. There has been no conviction in the present case. Therefore, the appeal is premature. The order entered at the conclusion of the preliminary adversary hearing to determine whether the materials seized were obscene and lawfully retained as evidence pending trial is not binding on the trial judge and is not appealable.

In this respect, the order entered in this case is analogous to and has the same effect as a ruling on a motion to suppress evidence. The materials found by Judge Clark to be obscene were retained as evidence to be used in the pending trial on the merits, and all other material was ordered returned to its owner. Just as a motion to change venue (State v. Henry, 1 N.C.App. 409, 161 S.E.2d 622 (1968)), and a motion to dismiss charges (State v. Black, 7 N.C.App. 324, 172 S.E.2d 217 (1970)) are interlocutory orders, a denial of a motion to suppress evidence is not a final judgment. See State v. Fowler, 3 N.C.App. 17, 164 S.E.2d 14 (1968). G.S. § 7A--27(d) makes no provision for an appeal as a matter of right from an interlocutory order in a criminal action. The United States Supreme Court in DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), held that orders granting or denying pretrial motions to suppress the evidentiary use in a federal criminal trial of material allegedly procured through an unreasonable search and seizure are not appealable even if the motion is filed before the return of the indictment. The Court relied upon the dominant rule of criminal appellate practice that a judgment must be final before it may be appealed.

'Orders granting or denying suppression in the wake of such proceedings are truly interlocutory, for the criminal trial is then fairly in train. When at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment--in each such case the order on a suppression motion must be treated as 'but a step in the criminal case preliminary to the trial thereof.' Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. (118), 120 (73 L.Ed. 275, 282).' 369 U.S. at 131, 82 S.Ct. at 660.

In Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925 (1949), the North Carolina Supreme Court said:

'As a general rule an appeal will not lie until there is a final determination of the whole case. (Citations omitted.) It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant.'

This rule was quoted with approval in State v. Childs, 265 N.C. 575, 144 S.E.2d 653 (1965). The...