State v. Davis

• Decision Date: 11 April 1945
• Docket Number: 362
• Citation: 33 S.E.2d 623,225 N.C. 117
• Parties: STATE v. DAVIS.
• Court: North Carolina Supreme Court

33 S.E.2d 623

225 N.C. 117

STATE v. DAVIS.

No. 362

Supreme Court of North Carolina

April 11, 1945

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

Walter H. Woodson and C. P. Barringer, both of Salisbury, for defendant, appellant.

SEAWELL Justice.

This defendant was tried in the Superior Court of Rowan County upon a bill of indictment charging him with murder. At the time the prisoner was brought to trial, the Solicitor announced that he would not ask for a verdict of murder in the first degree, but for a verdict of murder in the second degree or manslaughter, as the evidence warrants. The defendant was convicted of manslaughter, and was sentenced to State's Prison at Raleigh for a period of not less than five, nor more than ten years, and appealed.

Out of several exceptions taken by the defendant during the course of the trial, the appeal presents two questions which merit attention:

1. It appears that the bill of indictment upon which the defendant was tried in Rowan Superior Court was, for some unexplained reason, captioned:

'STATE OF NORTH CAROLINA SUPERIOR COURT RANDOLPH COUNTY SEPTEMBER TERM, 1944.'

The defendant did not move to quash the indictment or except to the jurisdiction of the court when put upon trial, but, at the conclusion of the trial, made a motion in arrest of judgment upon the ground that the caption of the indictment 'shows upon its face the words 'Randolph County' and the language of the bill alleges a crime committed in Rowan County. ' Defendant therefore contends that in the absence of any order of removal or change of venue, the case could not legally be tried in Rowan County.

The record discloses that, in point of fact, the bill of indictment was found in Rowan County by a grand jury drawn for that county, and the question either of jurisdiction or of venue is not well taken. The situation, unusual as it is is not without precedent, or judicial determination. In State v. Sprinkle, 65 N.C. 463, a bill of indictment contained the words 'Iredell County' in the caption. In the body of the bill it was charged that the offense was committed in Wilkes County. The record of the case, however showed that the bill of indictment was found by a regular grand jury for Wilkes County, and was returned in court a true bill. The defendant was convicted, and upon motion of defendant's counsel, judgment was arrested on account of the appearance of the word 'Iredell' in the caption instead of the proper name of the County, 'Wilkes.' The Court said:

'There was error in ordering the arrest of judgment. We think this indictment would have been good before the act, Revised Code, chap. 35, sec. 20; State v. Wasden, but however that may be, we are clearly of opinion that this defect after verdict, is cured by the said statute. This will be certified that the Court may proceed to judgment agreeable to Law.'

The statute referred to is now G.S. s 15-155. See annotation.

A somewhat similar situation occurred in State v. Francis, 157 N.C. 612, 72 S.E. 1041, where the name of the county in which the offense was alleged to have been committed did not appear in the caption of the indictment, and the Court said:

'The fact that the county in which the bill of indictment was found does not appear in the caption of the indictment does not constitute ground for arresting the judgment. * * * The...