State v. Cumber
| Decision Date | 15 December 1971 |
| Docket Number | No. 73,73 |
| Citation | 185 S.E.2d 141,280 N.C. 127 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Byron Carlton CUMBER. |
Robert Morgan, Atty. Gen., and Roy A. Giles, Jr., Staff Atty., Raleigh, for the State.
In establishing the North Carolina Court of Appeals, defining its jurisdiction, and providing a system of appeals, the General Assembly followed the basic principle that there should be only one trial on the merits and one appeal on the law, As of right, in every case. Consequently, double appeals as of right--first to the Court of Appeals and then to the Supreme Court--are authorized only in three instances specified by G.S. § 7A--30. Here, defendant seeks to qualify for a double appeal as of right on the first ground listed in that statute, I.e., involvement of a substantial question arising under the Constitution of the United States or of this State.
The record reveals that after the two school principals had identified the typewriter, adding machine, radios and other property owned by the schools, and after one of the principals had testified that he observed these items in defendant's station wagon on the night of 27 September 1970, the State tendered the various items in evidence. This tender evoked the following colloquy:
'MR. COBB (the solicitor): I would like to introduce this evidence and these exhibits into evidence.
'MR. NEWTON (defense counsel): Objection.
Defendant contends in this Court, as he did in the Court of Appeals, that the foregoing objection required the trial judge to conduct a voir dire to establish whether the officers obtained the stolen property by an illegal search of his station wagon in violation of the Fourth and Fourteenth Amendments to the Federal Constitution. The Court of Appeals rejected this contention and so do we.
Defendant's objection was directed specifically to an alleged lack of proper identification of some of the stolen property. Had an allegedly illegal search and seizure been the basis of the objection, counsel would certainly have said so when answering the court's inquiry. The law does not require trial judges to be clairvoyant and omniscient. Neither does it permit defense counsel to play hide and seek with objections. The trial court, upon inquiry, is entitled to know the ground upon which an objection is interposed; and if counsel specifies one ground, he cannot be heard to urge a different ground on appeal. 'When the objection is made the court may in all cases require the grounds of objection to be stated, and only those stated can be made the subjects of exception and review.' State v. Wilkerson, 103 N.C. 337, 9 S.E. 415 (1889). As aptly stated in Gidney v. Moore, 86 N.C. 484 (1882), ...
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State v. Brown
...this issue at the trial level, and ordinarily he is not entitled to appellate review without having done so. State v. Cumber, 280 N.C. 127, 131-32, 185 S.E.2d 141, 144 (1971); State v. Mitchell, 276 N.C. 404, 410, 172 S.E.2d 527, 530-31 (1970). However, in the exercise of its supervisory ju......
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State ex rel. Com'r of Ins. v. North Carolina Rate Bureau
...the court below." State v. Dorsett & Yow, 272 N.C. 227, 229, 158 S.E.2d 15, 17 (1967) (emphasis in the original). In State v. Cumber, 280 N.C. 127, 185 S.E.2d 141 (1971), the constitutional question was not raised in the trial court but for the first time in the Court of Appeals. This Court......
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State v. Hudson, 15
...trial court. State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968); State v. Cumber, 280 N.C. 127, 185 S.E.2d 141 (1971). This is in accord with decisions of the Supreme Court of the United States. Edelman v. California, 344 U.S. 357, 73 S.......
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State v. Jones
...from the record as understood by the parties at the time, another cannot be assigned in the reviewing court." State v. Cumber, 280 N.C. 127, 131, 185 S.E.2d 141, 144 (1971); Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962); State v. Wilkerson, 103 N.C. 337, 9 S.E. 415 (1889); Gidney v. ......