State v. Dunston, 439

• Decision Date: 12 January 1962
• Docket Number: No. 439,439
• Citation: 123 S.E.2d 480,256 N.C. 203
• Court: North Carolina Supreme Court
• Parties: STATE, v. Samuel Lee DUNSTON.

Page 480

123 S.E.2d 480

256 N.C. 203

STATE, v. Samuel Lee DUNSTON.

No. 439

Supreme Court of North Carolina.

Jan. 12, 1962

T. W. Bruton, Atty. Gen., H. Horton Rountree, Asst. Atty. Gen., for State.

Hubert H. Senter, Franklinton, for defendant.

DENNY, Justice.

At the threshold of this case we are confronted with a fatally defective count in bill of indictment No. 6408, charging the defendant with resisting an officer. The bill of indictment is defective in that it does not allege all the facts necessary to constitute an offense under G.S. § 14-223. Here, as in the case of State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734, the bill fails to charge the official duty the named officer was discharging or attempting to discharge. State v. Harevey, 242 N.C. 111, 86 S.E.2d 793; State v. Eason, 242 N.C. 59, 86 S.E. 2d 774.

It is the duty of this Court to carefully scrutinize the record on appeal. And if it appears that a judgment has been entered on a bill of indictment or upon a separate count therein and that such bill or count does not sufficiently charge an offense, it is the duty, of this Court, ex mero motu, to arrest judgment. State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Watkins, 101 N.C. 702, 8 S.E. 346.

The appellant's first assignment of error is to the action of the trial court in consolidating the charge of careless and reckless driving with the charges of hit-and-run and resisting an officer after the trial had commenced and the State had begun to offer testimony. After this additional count had been consolidated with the counts originally consolidated for trial, the State continued to examine H. W. Hodges. The defendant objected to each question propounded to this witness. Whereupon, the court stated: 'If you are objecting to it, I will permit you to examine the jury further if you want to.' Defendant's counsel then announced that 'the defendant passes the jury, but does not waive any objection made.' The Assistant Solicitor then announced that 'the State passes the jury.'

Assignment of error No. 2 is to the order of the court directing that the jury be impaneled to try the charge of careless and reckless driving before the jury was passed by the State and the defendant.

Assignment of error No. 14 is to the impaneling of the jury three different times during the course of the presentation of the State's evidence.

It does not appear from the record proper that the defendant entered any plea to the count charging him with careless and reckless driving or to the count charging him with speeding. Furthermore, there is nothing to indicate that the defendant was given an opportunity to pass upon the impartiality of the jury upon the speeding charge. We shall consider these three assignments of error together.

The State points out in its brief that in the statement of the case on appeal the following appears: 'When the cases were called for trial, the Assistant Solicitor stated that the defendant was being tried on bills of indictment numbered 6408 and 6409 and moved that the cases be consolidated for trial. The defendant made no objection to the consolidation. The defendant entered a plea of not guilty to each case.'

There is nothing in the record to support this statement. On the other hand, the record is to the effect that when the cases were called, the Assistant Solicitor moved for the consolidation of the charges of hit-and-run and resisting arrest. The court allowed the motion and the defendant entered a plea of not guilty to these two counts.

Moreover, when the State concluded its evidence and the defendant moved for judgment of nonsuit on the speeding count, the court found as a fact that the jury had not been selected and impaneled to try the speeding charge and that it was not before the jury for disposition.

The State contends that the consolidation of the charge of careless and reckless driving with the charges of hit-and-run and resisting an officer was seasonably brought to the attention of the court and that the defendant was not prejudiced by the consolidation. Furthermore, the State takes the position that when the defendant did not object to having the speeding charge disposed of at the close of the State's evidence, there was no question of consolidation but a new charge; that the court having found that this charge was not before it, at the close of the State's evidence, the defendant by not objecting to the jury being re-impaneled to try the speeding charge, waived all objections to the procedure.

It will be noted that there is nothing in the record to indicate that the Assistant Solicitor moved for the consolidation of the speeding count with the other counts for trial, or that the court ordered a consolidation. It appears that the court simply ordered the jury impaneled for the purpose of trying the charge of speeding, and the evidence was offered on the question of speeding, which count was submitted to the jury as though there had been a consolidation of all four counts.

In the case of State v. Rice, 202 N.C. 411, 163 S.E. 112, 113, the defendant was indicted in two separate bills: (1) murder; and (2) assault with a deadly weapon,...