State v. Cruse

• Decision Date: 12 June 1953
• Docket Number: No. 364,364
• Citation: 238 N.C. 53,76 S.E.2d 320
• Court: North Carolina Supreme Court
• Parties: STATE, v. CRUSE.

Page 320

76 S.E.2d 320

238 N.C. 53

STATE, v. CRUSE.

No. 364

Supreme Court of North Carolina.

June 12, 1953

Charles B. Aycock, Kinston, for Petitioner-appellant.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

DEVIN, Chief Justice.

The North Carolina Post-Conviction Statute, G.S. § 15-217, under which the petition in the case before us was filed, provides that any person imprisoned in State's Prison or jail 'who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of North Carolina, or both, as to which there has been no prior adjudication by any court of competent jurisdiction may institute a proceeding under this article.'

The statute provides that the proceeding be commenced by filing petition in the Superior Court of Wake County or the county in which the conviction took place, setting forth the respects in which petitioner's constitutional rights were violated, and that the constitutional questions raised have not heretofore been raised or passed upon by any court of competent jurisdiction. G.S. §§ 15-218 to 15-222. The procedure prescribed by the statute was followed in this case, and the presiding judge after hearing all the evidence, made findings of fact and entered judgment thereon adverse to the petitioner.

The statute which authorizes the procedure by which the defendant has sought relief in the instant case was not intended to operate as a substitute for an appeal. It was not designed merely to afford to a person heretofore convicted of crime the right to present to this Court assignments of error in the trial in which he was convicted and from which he did not appeal. The statute was enacted for the purpose of providing an adequate, simple and effective post-conviction remedy for persons who have suffered substantial and unadjudicated deprivation of constitutional rights in the original action which resulted in their conviction, because they were prevented from claiming such constitutional rights by factors beyond their control. Miller v. State, 237 N.C. 29, 74 S.E. 2d 513. The statute provides a procedure by which a person convicted of crime may thereafter obtain a hearing upon the question whether he was denied due process of law. It affords an opportunity to inquire into the constitutional integrity of his conviction. People v. Dale, 406 Ill. 238, 92 N.E.2d 761.

In the interpretation of the Illinois PostConviction Statute, S.H.A. ch. 38, § 826 et seq., which is similar to the North Carolina statute, the Supreme Court of Illinois in People v. Hartman, 408 Ill. 133, 96 N.E.2d 449, 451, had this to say: 'It certainly was not the intent of the General Assembly, by the new act in question, to enable a person convicted of a crime to have a review of ordinary questions of procedure, for which the law already provides a remedy, by charging that they constitute a denial of constitutional rights.' And in People v. Farley, 408 Ill. 288, 96 N.E.2d 453, 456, the Court again pointed out that 'objections to evidence, or ordinary errors occurring during the course of the trial do not constitute denials of rights guaranteed by the constitution.' See also People v. Reeves, 412 Ill. 555, 107 N.E.2d 861.

It was not the intention of the legislature to afford under this statute a general review of every error a prisoner who is dissatisfied with his conviction and sentence may assert, but only in those instances in which a substantial denial of a constitutional right has been made to appear.

Furthermore, the statute under which the defendant's petition was filed requires that petitioner shall 'clearly set forth the respects with which petitioner's constitutional rights were violated'. G.S. § 15-218. In compliance with this provision petitioner has set out in his amended petition the several respects in which he claims he suffered deprivation of his constitutional rights in the trial which resulted in his conviction. Each of these was considered by the court below and findings of fact with respect thereto entered of record. These findings are supported by evidence and are binding on the defendant on this review. Miller v. State, 237 N.C. 29, 74 S.E.2d 513. The defendant's claim that he was unable to subpoena witnesses is not borne out. Several witnesses were present and testified at his instance. The fact that on the trial photographs competent for some purpose were admitted and that evidence in corroboration of witnesses examined was received is insufficient to show error or unfairness. A motion for judgment as of nonsuit if made would have been unavailing as there was evidence both of assault and robbery, and of conspiracy to commit these crimes, and a motion to quash the second count if allowable would have presented only a question of procedure by way of amendment or additional bill. The failure of the record to show the court's charge to the jury is inconsequential. Error may not be predicated on the possibility of error in a charge which was not reported and as to which no error is now assigned. The presumption is that the court charged the jury properly as to the law applicable to all phases of the evidence. State v. Russell, 233 N.C. 487, 64 S.E.2d 579. But these are matters of procedure. The proceeding authorized by the statute does not contemplate a review of errors in the trial subsequently assigned after a conviction from which defendant did not appeal. The right to an appeal is unqualifiedly given in North Carolina to every person convicted of a criminal offense in any court. G.S. § 15-180. No constitutional question is presented by assignments of error relating only to matters of procedure. The constitution does not guarantee to a defendant charged with crime a trial free from all error. He may not be held to have suffered deprivation of constitutional rights merely from adverse rulings of the trial court on matters of procedure.

The defendant, however, relies upon the fact that in the trial court no counsel was assigned to aid him. He avers that he was unacquainted with legal procedure, was of limited education, and unable adequately to defend himself. He contends that legal counsel would have enabled him to make motions and raise questions material to his defense, and that there was absence of that due process of law guaranteed him by the Fourteenth Amendment to the Constitution of the United States and Article I, sec. 17 of the Constitution of North Carolina.

It is not contended that request was made to the court that counsel be assigned him or that the court was advised he was unable to secure counsel. The bill of indictment did not charge a capital felony. The Constitution of North Carolina in Art. I, sec. 11, declares the right of every man charged with crime 'to have counsel for his defense'. This provision of the Constitution, however, as interpreted by this Court, does not make it incumbent upon the trial judge in all case of criminal prosecution for noncapital offenses to assign counsel but only when the circumstances are such as would seem to require it as essential to a fair trial. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. The settled rule in North Carolina...