State v. Foster

• Decision Date: 15 November 1972
• Docket Number: No. 51,51
• Citation: 192 S.E.2d 320,282 N.C. 189
• Parties: STATE of North Carolina v. Willie FOSTER, Jr.
• Court: North Carolina Supreme Court

Page 320

192 S.E.2d 320

282 N.C. 189

STATE of North Carolina v. Willie FOSTER, Jr.

No. 51.

Supreme Court of North Carolina.

Nov. 15, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. William B. Ray and Associate Attorney Thomas W. Earnhardt, Raleigh, for the State.

Hicks & Harris by Richard F. Harris, III, and Eugene C. Hicks, III, Charlotte, for defendant appellant.

BOBBITT, Chief Justice.

Although the undisputed and unequivocal testimony of Mrs. Davis tends to show that she was assaulted, the jury failed to find that she was assaulted by defendant. Indeed, Mrs. Davis's testimony affirmatively discloses that she could not identify defendant as her assailant. The appeal relates solely to the indictment and trial of defendant for first degree burglary.

We consider first those assignments of error which, if tenable, would require dismissal rather than a new trial.

On 14 February 1972, defendant moved that the indictments be dismissed because he had been denied a preliminary hearing. In an order dated 17 February 1972, Judge Hasty denied defendant's motion but provided for an examination of the State's witnesses by defendant's counsel prior to trial. At the commencement of the trial at the 1 May 1972 Session, the motion to dismiss was renewed by defendant and denied by Judge McLean. Defendant excepted to and assigns as error each of these rulings.

Motions filed by defendant assert the following: After his arrest on 22 October 1971, defendant was confined in jail until released on 19 January 1972. Nine warrants had been issued, two of which were for the crimes for which he was tried at the 1 May 1972 Session. Defendant was present and represented by counsel at each of five scheduled preliminary hearings. At each of the first four, the hearing was continued on motion of the State and over defendant's objection. The last was on 19 January 1972 when, by order of the presiding District Court Judge, all of the cases were dismissed from the docket of that court and in each case the entry 'nolle prosse' was made.

We take judicial notice that the 3 January 1972 Session, at which the two indictments on which defendant was tried were returned was a one-week session. A week or so after his release on 19 January 1972, defendant was rearrested on a capias based on these indictments. Seemingly, the District Court Judge who ordered defendant's release on 19 January 1972 was unaware of the fact that defendant had been indicted by the grand jury.

Admittedly, defendant was entitled to a prompt preliminary hearing. Assuming the facts to be as stated in defendant's motions to dismiss, sufficient justification does not appear for the continued failure of the State to proceed with a preliminary hearing and its eventual abandonment of this procedure in favor of submitting a bill of indictment to the grand jury. It deemed advisable, defendant could have applied to one of the Justices or Judges of the Appellate Division or to a superior court judge for a writ of habeas corpus to review the legality of his confinement between 22 October 1971 and 19 January 1972. Upon return of such writ, the hearing Justice or Judge might well have ordered defendant's release from custody unless a prompt preliminary hearing was afforded. However, the failure of the State to proceed with the scheduled preliminary hearings did not Per se constitute ground for complete and final dismissal of the charges against him.

Neither the North Carolina nor the United States Constitution requires a preliminary hearing. A preliminary hearing is not a necessary step in the prosecution of a person accused of crime, and an accused person is not entitled to a preliminary hearing as a matter of substantive right.

'A preliminary hearing may be held unless waived by defendant. G.S. 15--85 and G.S. 15--87. But none of these statutes prescribes mandatory procedures affecting the validity of a trial. A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction.' State v. Hargett, 255 N.C. 412, 413, 121 S.E.2d 589, 590 (1961). 'We have no statute requiring a preliminary hearing, nor does the State Constitution require it. It was proper to try the petitioner upon a bill of indictment without a preliminary hearing.' State v. Hackney, 240 N.C. 230, 237, 81 S.E.2d 778, 783 (1954). Accord, Gasque v. State, 271 N.C. 323, 329--330, 156 S.E.2d 740, 744 (1967); State v. Overman, 269 N.C. 453, 467, 153 S.E.2d 44, 56 (1967); Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970); Carroll v. Turner, 262 F.Supp. 486 (E.D.N.C. 1966).

'If the grand jury finds an indictment, there is no need to conduct a preliminary examination.' 21 Am.Jur.2d Criminal Law, § 442 (1965). Accord, Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).

When it was brought to Judge Hasty's attention that defendant's counsel had had no opportunity to examine the State's witnesses on account of the State's failure to conduct a preliminary hearing, an order was promptly made affording defendant's counsel an opportunity to conduct such examinations. Nothing in the record discloses that defendant was adversely affected at trial on account of the postponement of the scheduled preliminary hearings and the eventual abandonment of this procedure after the grand jury had returned the indictments. We hold that such irregularities as may have occurred in connection with the failure to provide a preliminary hearing for defendant were insufficient to preclude prosecution of defendant for the crimes for which he was indicted. Hence, the denial by Judge Hasty and by Judge McLean of defendant's motions to dismiss the indictments was proper.

Defendant assigns as error the denial of his motion to quash the indictment, citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman relates to punishment, not to the elements of any crime. The indictment is in proper form and sufficiently charges first degree burglary. Hence, the assignment is wholly without merit.

Defendant's further contention that the indictment is fatally defective because it does not sufficiently describe the property which defendant intended to steal is wholly without merit. 13 Am.Jur.2d Burglary, § 36 (1964); 12 C.J.S. Burglary § 39 (1938).

Defendant assigns as error the denial of his motion in arrest of judgment and as support therefor repeats the contentions previously made in connection with his motion to quash. The motion was properly denied.

Defendant assigns as error the denial of his motion for judgment as in case of nonsuit.

He contends this motion should have been allowed because (1) the evidence was insufficient for submission to the jury, and (2) there was a fatal variance between the indictment and the proof.

There was ample evidence to support findings that the Davis home, then occupied by Davis, Mrs. Davis and their two children, had been feloniously broken into and entered in the nighttime with intent to commit the crime of larceny and that, in executing that intent, the television set, the record player and money were stolen.

The State's contention that defendant is guilty of burglary as charged rests upon evidence which tends to show that one of three prints lifted from one of the flower pots shortly after the breaking, entering and larceny occurred, and a print of defendant's right index finger taken by Officer Stubbs on 12 November 1971, are identical.

'To warrant a conviction, the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed under such circumstances that they could only have been impressed at the time when the crime was committed.' Annot., 'Evidence--Finger, Palm, or Footprint,' 28 A.L.R.2d 1115, 1154, § 29 (1953). See also State v. Smith, 274 N.C. 159, 164, 161 S.E.2d 449, 452 (1968), and authorities...