State v. Gales
| Decision Date | 19 May 1954 |
| Docket Number | No. 652,652 |
| Citation | 82 S.E.2d 80,240 N.C. 319 |
| Parties | STATE, v. GALES. |
| Court | North Carolina Supreme Court |
Harry McMullan, Atty. Gen. and Ralph Moody, Asst. Atty. Gen., for the State.
H. W. B. Whitley, Raeford, for the prisoner.
The prisoner asserts by his assignments of error that the trial judge erred in denying his motion to quash the indictment, in admitting certain testimony of the State's witness Gurney R. Lane, in refusing to withdraw from the petit jury the question of first degree murder, in charging the petit jury, in disallowing his motion for a vacation of the verdict and a new trial, in overruling his motion in arrest of judgment, and in entering judgment.
The indictment was returned at the November Term, 1953, of the Superior Court of Hoke County by the grand jury of eighteen members, nine of whom were drawn at that term and nine of whom were drawn at the previous April Term.
After pleading 'not guilty' to the charge, the prisoner moved to quash the indictment on the ground that the grand jury was drawn and organized in violation of this provision of G.S. § 9-25: 'At the April term of superior court held for the county of Hoke a grand jury shall be drawn, * * * and it shall serve until the following April term, Hoke superior court'. He undertook to raise the same point a second time subsequent to the verdict by his motion in arrest of judgment.
An objection to an indictment based on defects or irregularities in the drawing or organization of the grand jury must be taken by a motion to quash the indictment. G.S. § 9-26; Miller v. State, 237 N.C. 29, 74 S.E.2d 513. It cannot be urged in arrest of judgment. State v. Sears, 61 N.C. 146. The motion to quash must be seasonably made. These rules regulate the time for the motion: (1) An accused may make the motion to quash the indictment as a matter of right up to the time when he is arraigned and enters his plea; (2) the presiding judge has the discretionary power to permit the accused to make the motion to quash the indictment as a matter of grace after his plea is entered and until the petit jury is sworn and impaneled to try the case on its merits; and (3) the presiding judge has no power to entertain a motion to quash the indictment at all after the petit jury is sworn and impaneled to try the case on its merits. An accused waives any objection to the grand jury which indicts him on the ground of defects or irregularities in its drawing or organization unless he takes the objection by a motion to quash the indictment before entering a plea to the merits. Miller v. State, supra; State v. Banner, 149 N.C. 519, 63 S.E. 84; State v. Gardner, 104 N.C. 739, 10 S.E. 146.
The trial judge observed these principles in denying the motion to quash the indictment and the motion in arrest of judgment. The prisoner waived his objection to the grand jury by his plea to the merits. His subsequent motion to quash came too late.
We deem it not amiss to note in passing from this phase of the appeal that the grand jury was drawn and organized in conformity with Chapter 465 of the Public-Local Laws of 1935, which provides 'for Rotating Grand Juries in Hoke County' and was in force on the effective date of the General Statutes. The provision invoked by the prisoner was originally enacted as a part of Chapter 104 of the Public Laws of 1923, which was repealed by Chapter 465 of the Public-Local Laws of 1935. The compilers of the General Statutes overlooked this repeal of Chapter 104 of the Public Laws of 1923, and inadvertently incorporated the provisions of the repealed statute in G.S. § 9-25. Their action in so doing did not impair the validity of Chapter 465 of the Public-Local Laws of 1935 in any way because the General Assembly has decreed in express terms that 'The General Statutes * * * shall not have the effect of repealing * * * public-local or private statutes * * * if such statutes were in force on the effective date of the General Statutes.' G.S. § 164-7.
The State sought to draw from its witness Gurney R. Lane a description of personal injuries suffered by the deceased in a beating which the prisoner admitted he administered to her about March 1, 1953. The solicitor propounded these questions to...
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