State v. Furmage

• Decision Date: 02 July 1959
• Docket Number: No. 726,726
• Citation: 109 S.E.2d 563,250 N.C. 616
• Parties: STATE, v. William F. FURMAGE.
• Court: North Carolina Supreme Court

Page 563

109 S.E.2d 563

250 N.C. 616

STATE, v. William F. FURMAGE.

No. 726

Supreme Court of North Carolina.

July 2, 1959

Malcolm B. Seawell, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Bernard A. Harrell, Raleigh, Member of Staff, for the State.

Britt, Campbell & Britt, Lumberton, for defendant, appellee.

BOBBITT, Justice.

The Recorder's Court of Red Springs District, Robeson County, is one of six district recorders' courts in Robeson County created by Chapter 634, Public-Local Laws of 1915.

Section 6(f) of the 1915 Act provided: 'Warrants may be issued by the recorders of said courts or by any justice of the peace of Robeson County, made returnable to said courts, for any person or persons charged with the commission of any offense of which the said courts have jurisdiction; * * *'

The 1915 Act was amended by Chapter 572, Public-Local Laws of 1925; by Chapter 333, Public-Local Laws of 1927; and by Chapter 22, Public-Local Laws of 1937.

The 1927 and 1937 amendments, in pertinent part, provide: 'That the prosecuting attorneys of the recorders' courts of Robeson County, as provided for by Public-Local Laws of one thousand nine hundred and fifteen, chapter six hundred thirty-four, shall have full power and authority to issue warrants, summons, subpoenas, commitments and administer oaths, and all other papers incident to the dispatch of business in said courts, * * *'.

The warrants, issued by C. Durham Ratley, Solicitor of the Recorder's Court of Red Springs District, Robeson County, upon his examination under oath administered by him of one J. H. Creech, commanded the arrest of defendant to answer the charges set forth in the appended affidavits of Creech. The warrants were returnable to said recorder's court. 'The affidavit and warrant must be read together, and so construed.' State v. Gupton, 166 N.C. 257, 80 S.E. 989, 991; Moser v. Fulk, 237 N.C. 302, 74 S.E.2d 729, and cases cited.

There is no contention that the warrants failed to allege facts sufficient to constitute criminal offenses, or that said recorder's court did not have jurisdiction of the criminal offenses therein charged, or that C. Durham Ratley was not the duly qualified solicitor or prosecuting attorney of said recorder's court.

Judge Hobgood, allowing defendant's said motions, quashed the warrants upon the ground that, 'insofar as said public-local laws purport to confer authority on Solicitors of the Recorders Courts of Robeson County to administer oaths and to issue warrants for arrest,' they are null and void 'for that the same are in violation of Article I, Section 8, of the North Carolina Constitution.'

Article I, Section 8, Constitution of North Carolina, provides: 'The legislative, executive, and supreme judicial powers of the government ought to be forever separate and distinct from each other.' (Our italics.) Originally, this provision (Article I, Section 8) was Section 4 of 'A Declaration of Rights' of the Constitution of 1776. See, The Constitution of North Carolina, Connor and Cheshire.

Article I, Section 15, which contains the only specific reference to warrants, provides: 'General warrants, whereby any officer or messenger may be commanded to search suspected places, without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.' Originally, this provision (Article I, Section 15) was Section 11 of 'A Declaration of Rights' of the Constitution of 1776. See, The Constitution of North Carolina, Connor and Cheshire. It relates to the essentials of a valid warrant. Brewer v. Wynne, 163 N.C. 319, 79 S.E. 629.

Article IV, Section 12, of our organic law, incorporated therein by the Convention of 1875, provides: 'The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a coordinate department of the government; but the General Assembly shall allot and distribute that portion of this power and jurisdiction which does not pertain to the Supreme Court among the other courts prescribed in this Constitution or which may be established by law, in such manner as it may deem best; provide also a proper system of appeals; and regulate by law, when necessary, the methods of proceeding in the exercise of their powers, of all the courts below the Supreme Court, so far as the same may be done without conflict with other provisions of this Constitution.'

Article II, Section 29, providing, in part, '(T)he General Assembly shall not pass any local, private, or special act or resolution relating to the establishment of courts inferior to the Superior Court,' (our italics) did not become a part of the Constitution of North Carolina until January 10, 1917, that is, subsequent to the passage of the 1915 Act creating the Recorder's Court of Red Springs District, Robeson County. Defendant makes no contention that said public-local laws are invalid as violative of Article II, Section 29. In this connection, see Durham Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593; State v. Horne, 191 N.C. 375, 131 S.E. 753; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484; In re Wingler, 231 N.C. 560, 565, 58 S.E.2d 372; State v. Norman, 237 N.C. 205, 210, 74 S.E.2d 602. Compare, In re Harris, 183 N.C. 633, 112 S.E. 425, and State v. Williams, 209 N.C. 57, 182 S.E. 711.

No provision of the Constitution of North Carolina designates the officials who are or may be clothed with authority to issue warrants. The officials authorized to issue warrants are those upon whom such authority has been conferred by the General Assembly.

G.S. § 15-18 provides: 'The following persons respectively have power to issue process for the apprehension of persons charged with any offense, and to execute the powers and duties conferred in this chapter, namely: The Chief Justice and the associate justices of the Supreme Court, the judges of the superior court, judges of criminal courts, presiding officers of inferior courts, justices of the peace, mayors of cities, or other chief officers of incorporated towns.'

In addition to the authority conferred by G.S. § 15-18, the General Assembly, by said public-local acts, has specifically conferred on the solicitor of the Recorder's Court of Red Springs District, Robeson County, the power to issue warrants. Defendant does not attack these statutes on the ground they are public-local acts. Hence, insofar as Article I, Section 8, Constitution of North Carolina, may be relevant, the said solicitor's authority has the same status as if conferred by G.S. § 15-18.

In State v. Thomas, 141 N.C. 791, 53 S.E. 522, the authority of the Mayor of Monroe to issue a valid warrant was not challenged. The office imposed upon the mayor both administrative and judicial duties. The question raised was whether under applicable statutes the board of aldermen could confer the mayor's authority to issue warrants upon the person chosen to act (in the absence of the mayor) as mayor pro tem. It was held that the mayor pro tem. was authorized, in the mayor's absence, to execute all the duties of the office, including authority to issue a valid warrant.

In State v. Turner, 170 N.C. 701, 86 S.E. 1019, the appeal was based on defendant's exceptions to the court's refusal to quash the warrant and to arrest judgment. Defendant's motions were interposed 'on the ground that the chief of police of High Point had no authority to take the affidavit of the complainant, who applied for the warrant and signed as complainant, and, therefore, had no authority to issue the warrant.' Clark, C. J., said: 'There are several grounds on either of which the judgment was correct. Section 9, c. 569, Public-Local Laws 1913, creating the court at High Point, provides: 'All processes of said court shall be issued by either the judge of said court or by the chief of police, the same to be issued on affidavit and returnable forthwith to said court.' The statute authorizing the chief of police to issue process inferentially confers on him the power to pass upon the sufficiency of the complaint as basis for a warrant and to administer the oath before issuing the process. ' No reference to Article I, Section 8, appears in the opinion or in the briefs.

It seems appropriate to refer briefly to certain recent decisions of this Court in which the defendant challenged the validity of a warrant, viz.:

This Court held that a defendant's right to challenge as unconstitutional (but not as violative of Article I, Section 8) a statute authorizing the issuance of warrants by a desk sergeant, State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642, and by a police lieutenant, State v. St. Clair, 246 N.C. 183, 97 S.E.2d 840, was waived when the defendant's objection was first made after trial and conviction in a court having original jurisdiction.

In State v. Wilson, 237 N.C. 746, 75 S.E.2d 924, it was held that a defendant's right to challenge as unconstitutional (but not as violative of Article I, Section 8) a statute authorizing the issuance of warrants by a police sergeant, was waived when the objection was first made in the Supreme Court.

In State v. McHone, 243 N.C. 231, 90 S.E.2d 536, and in State v. McHone, 243 N.C. 235, 90 S.E.2d 539, the justice of the peace who issued the warrants was also a police officer of Mount Airy; and the warrants were issued on affidavit of another police officer of Mount Airy. The latter decision (243 N.C. 235, 90 S.E.2d 539) was based in part on the ground that defendant's plea in abatement, by which he challenged the validity of the warrant, came too late, i. e., after trial and conviction in a court having original jurisdiction. The former decision (243 N.C. 231, 90 S.E.2d 536, 539) was put on different grounds. There it was held that the person who issued the warrant did so as authorized by G.S. § 15-18 in his capacity as justice of...