State v. Childs, 83

• Citation: 152 S.E.2d 453,269 N.C. 307
• Decision Date: 03 February 1967
• Docket Number: No. 83,83
• Court: United States State Supreme Court of North Carolina
• Parties: STATE, v. Albert Bobby CHILDS.

Page 453

152 S.E.2d 453

269 N.C. 307

STATE, v. Albert Bobby CHILDS.

No. 83.

Supreme Court of North Carolina.

Feb. 3, 1967.

Atty. Gen. T. W. Bruton and Staff Attorney Wilson B. Partin, Jr., Raleigh, for the State.

Thomas White, Marion, Ruben Dailey, and Robert Riddle, Ashville, for defendant appellant.

PARKER, Chief Justice.

The record contains 360 exceptions and 42 assignments of error. Many of the exceptions and assignments of error present the same question for decision, e.g., many rulings of the judge granting the State's peremptory challenge for cause of a prospective juror on the Voir dire because the prospective juror stated in reply to questions by the State that he had conscientious scruples against the infliction of the death penalty by the State, or that by reason of such conscientious scruples and beliefs he could not render a verdict of guilty where a death sentence is mandatory. Many of the exceptions and assignments of error do not merit any discussion. To discuss all of them Seriatim would cause us to write a long book, and would serve no useful purpose. We shall discuss only those assignments of error set forth in defendant's brief for which there is citation of authority, and those assignments of error which we deem merit discussion.

Before defendant's arraignment, defendant, through his counsel, moved to quash the three indictments against him. According to the record before us, defendant assigned no reason to support his motion to quash. The record shows simply, 'MOTION DENIED--EXCEPTION NO. 1.' Defendant assigns as error the denial of his motion to quash the three indictments against him. We shall discuss only the two indictments for which he was placed on trial, to wit, the rape indictment and the burglary indictment.

In his brief he contends that the court erred in denying his motion to quash the three indictments for the following reasons: (1) 'The Bills of Indictment were returned by the foreman of the Grand Jury to the court at a time when the defendant was not in court nor were his attorneys present in court.' (2) 'The record fails to disclose that the defendant was brought into open court and there present with his counsel upon the return of the Bills of Indictment or that Bills were even returned in open court.' (3) 'It is the returning of the Bill publicly, in open court and its being there recorded that makes it effectual. STATE v. COX, 28 NC 440.' (4) 'It is submitted that the burglary bill of indictment attempts to charge several offenses and is defective.'

In State v. Stanley, 227 N.C. 650, 44 S.E.2d 196, the defendant was tried upon an indictment charging him with the murder of his wife; he was convicted of murder in the first degree, sentenced to death, and appealed. At the opening of the trial, the defendant moved to quash the bill of indictment, because he was not present in court when it was returned and read. The motion was overruled, and defendant excepted. In its opinion the Court said:

'Relative to indictment and trial there are two things guaranteed by the Constitution to one accused of crime; Information as to the nature of the crime of which he is accused, and confrontation of his accusers. One of these requirements is satisfied by his arraignment, and if by plea of not guilty he puts himself upon his country the ensuing trial by jury in which he may confront and examine the witnesses, satisfies the other. The exception seems to point to one or the other of these rights, neither of which was denied him. In a capital case the indictment is still required to be returned into open court by the grand jury in a body, or a majority of them. G.S. § 15--141. In other cases it may be returned by the foreman. It may be assumed that the practice has been preserved in the case of capital felonies as an additional guaranty that the requisites to its validity have been duly observed.

'The indictment and its return are no part of the trial. The fallacy of the argument that it was in any way necessary that the defendant be present at once appears when we understand that the indictment is often found before the accused is even apprehended. It is not the practice to have defendant present although he may be in custody.'

In the instant case, defendant contends that neither he nor his lawyers were in court when the indictments were returned in open court true bills. In the Stanley case, the defendant contended that the indictment should be quashed because he was not in court when the indictment was returned in open court as a true bill. This factual distinction in our opinion, and we so hold, in no way impairs the authority of the Stanley case on the point for which it is cited here, and it is controlling in the instant case.

In 42 C.J.S. Indictments and Informations § 17, p. 856, it is said:

'An indictment is not void because accused was not present in the county when he was indicted. In the absence of a statutory provision to the contrary, a grand jury has the power to indict or present for a crime whether accused has been arrested and is in custody or not, jurisdiction not being in any way dependent on his arrest or custody.'

Defendant further contends, 'The record fails to disclose * * * that bills were even returned into open court.' He cites in support of this contention State v. Cox, 28 N.C. 440, which holds, Inter alia, that it is the returning of the indictment publicly in open court, and its being there recorded, that makes it effectual.

On 30 August 1966 the Attorney General of North Carolina filed a motion in the Supreme Court suggesting a diminution of the record in the instant case on two grounds: First, that the transcript of the case on appeal originally certified to the Supreme Court by the Clerk of the Superior Court of Buncombe County does not disclose in clear terms that true bills of indictment were returned in open court against the defendant. Attached to his motion were certified copies of:

'1. Page 27, Criminal Minute Docket 33, Buncombe County Superior Court, January 4, 1965; pages 203 and 208, Criminal Minute Docket 33, Buncombe County Superior Court, June 7, 1965, showing the actual transactions in court with respect to the return of the bills of indictment against the defendant.

'2. (The second ground will be discussed later on in this opinion.)'

The Court in conference allowed this motion on 30 August 1966. Copies of the criminal minute docket of Buncombe County Superior Court on 7 June 1965, certified under the signature and seal of Zebulon Weaver, Jr., clerk of the Superior Court of Buncombe County, by deputy clerk Evelyn C. Boone, as set forth above in the Attorney General's motion and attached thereto, show that the indictment against defendant in the rape case here and the indictment against defendant in the burglary case here were returned in open court by J. G. Stikeleather, Jr., foreman of the grand jury, and 15 members of the grand jury; and that the two indictments were read in open court to the foreman and members of the grand jury, and that each indictment was reported a true bill and signed by the foreman of the grand jury, and so recorded in the clerk's minutes. The Clerk of the Supreme Court, by order of this Court, mimeographed the Attorney General's motion with the attached minutes of the Buncombe County Superior Court and filed it as an addendum to the record. The minutes of the court show that the requirements in State v. Cox, supra, and G.S. § 15--141 were strictly complied with.

There is no merit to defendant's contention that the burglary indictment charges several offenses, and is defective. In support of this contention, he cites no authority and simply makes the bald statement of what his contention is without analysis or discussion. It is true that this indictment charges two offenses, (1) burglary in the first degree, and (2) larceny of money from the building allegedly feloniously broken into and entered, as alleged in the first count, but the bill is not defective. These two counts, by virtue of G.S. § 15--152, may be joined in one indictment in separate counts. See also State v. Knight, 261 N.C. 17, 134 S.E.2d 101.

Defendant's assignment of error that the court erred in denying the motion to quash the indictments for rape and burglary is overruled.

At the 23 August 1965 Criminal Session of Buncombe, Judge Raymond B. Mallard presiding, the three indictments here against defendant, as set forth above, were called for trial. Before proceeding with the trial defendant's court-appointed lawyers, members of the Buncombe County Bar, filed with the court a written motion alleging that due to the wide publicity given by the daily papers in Asheville and by the radio in Asheville to the alleged offenses for which defendant was under indictment, and to the contents of a psychiatric examination and evaluation concerning defendant's sanity, and due to the very extensive discussion of defendant's cases by residents of Buncombe County and of the western area of the State, it is impossible for defendant to obtain a fair and impartial trial by jurors from Buncombe, Madison, Haywood, Henderson, Transylvania, Swain, Cherokee, Jackson, Polk, McDowell, Burke, Yancy, Avery, Mitchell, Rutherford, Clay, Graham, Macon, or Watauga Counties. Wherefore, defendant prays that the court in its discretion enter an order removing the cases for trial 'to some other county outside the area served by the Buncombe County news media and one other than the counties mentioned in this motion.' Defendant offered evidence in support of his motion, and the State offered evidence against it. Judge Mallard entered an order finding as a fact that there is no evidence of any prejudice created against defendant by any news media, or otherwise, that would prevent defendant from obtaining a fair and impartial trial in Buncombe County by a jury drawn as provided by law from McDowell County. Wherefore, Judge Mallard acting pursuant to G.S. § 1--86, and...