State v. Hammonds

Citation241 N.C. 226,85 S.E.2d 133
Decision Date15 December 1954
Docket NumberNo. 581,581
PartiesSTATE, v. Sadie Jordan HAMMONDS.
CourtUnited States State Supreme Court of North Carolina

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Gen., for the State.

Richard E. Weaver, Whiteville, Nance & Barrington, Fayetteville, for defendant.

DENNY, Justice.

The defendant moved in this Court in arrest of judgment. The motion is bottomed on the contention that the count upon which she was tried and convicted in the court below does not contain her name, and is, therefore, fatally defective. In support of her position she cites State v. Phelps, 65 N.C. 450; State v. McCollum, 181 N.C. 584, 107 S.E. 309; and State v. Camel, 230 N.C. 426, 53 S.E.2d 313.

There appears to be some conflict in the decisions of this Court on the question raised by the defendant's motion. In State v. Phelps, supra, however, the motion in arrest of judgment was directed to a bill of indictment, purporting to charge the defendant with receiving stolen goods. The Court held that the indictment was 'defective in not containing the name of the defendant in the proper place, and distinctly and positively charging him with receiving the stolen goods, etc.' Certainly, a warrant or bill of indictment would be defective in any case where the defendant was not clearly and positively charged with the commission of the purported offense. State v. Finch, 218 N.C. 511, 11 S.E.2d 547.

In the case of State v. McCollum, supra [181 N.C. 584, 107 S.E. 309], the indictment contained five separate counts, and the one upon which the defendant was convicted did not contain his name. The Court said: 'It is very generally held, in an indictment consisting of several counts, that each count should be complete in itself, * * *.' The motion in arrest of judgment was upheld. While in State v. Camel, supra, this Court held a separately numbered count in a warrant which did not contain the name of the defendant, to be defective.

Notwithstanding the fact that some of our decisions would seem to support a contrary view, we think the warrant under consideration is sufficient to withstand the defendant's motion when considered in light of the provisions of G.S. § 15-153. All that is required in a warrant of bill of indictment, since the adoption of the above statute, is that it be sufficient in form to express the charge against the defendant in a plain, intelligible, and explicit manner, and to contain sufficient matter to enable the court to proceed to judgment and thus bar another prosecution for the same offense. State v. Smith, 240 N.C. 99, 81 S.E.2d 263, State v. Brady, 237 N.C. 675, 75 S.E.2d 791; State v. Loesch, 237 N.C. 611, 75 S.E.2d 654; State v. Sumner, 232 N.C. 386, 61 S.E.2d 84; State v. Stone, 231 N.C. 324, 56 S.E.2d 675; State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; State v. Beal, 199 N.C. 278, 154 S.E. 604.

The function or purpose of a warrant or bill of indictment is (1) to make clear and definite the offense charged so that the investigation may be confined to that offense in order that the proper procedure may be followed and the applicable law invoked, and (2) to put the defendant on notice as to what he is charged with and to enable him to make his defense thereto. State v. Gregory, supra.

It is clear that in the instant case, the defendant knew the character of the offense charged and made her defense accordingly. She was tried solely on the count charging the unlawful and willful transportation of 16 pints of tax-paid whiskey. It is true that if we consider this count as separately stated, her name does not appear in it, but we think the count should be treated as conjunctively stated; and the mere fact that the writer of the warrant placed a period at the end of the second count and started the third count as a new sentence, beginning with the conjunction 'and,' is a mere refinement. While we do not wish to encourage or approve carelessness in drafting warrants or bills of indictment, on the other hand, we do not look with favor upon the practice of quashing warrants or bills of indictment or arresting judgments for mere refinements or informalities that could not possibly have been prejudicial to the rights of the defendants in the trial court. State v. Moses, 13 N.C. 452; State v. Barnes, 122 N.C. 1031, 29 S.E. 381; State v. Hester 122 N.C. 1047, 29 S.E. 380; State v. Francis, 157 N.C. 612, 72 S.E. 1041; State v. Ratliff, 170 N.C. 707, 86 S.E. 997; State v. Carpenter, 173 N.C. 767, 92 S.E. 373; State v. Poythress, 174 N.C. 809, 93 S.E. 919; State v. Hedgecock, 185 N.C. 714, 117 S.E. 47; State v. Whitley, 208 N.C. 661, 182 S.E. 338; State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Sumner, supra.

This Court, in the case of State v. Barnes, supra [122 N.C. 1031, 29 S.E. 383], speaking through Clark, J., later Chief Justice, said: 'It is passing strange that any prosecuting officer should, by negligence or inadvertence, depart, * * * from the forms so long used, and run the risk of a grave miscarriage of justice and throwing of a heavy bill of costs on the public by such carelessness. The accustomed and approved forms are accessible, and should be followed by the solicitors, * *. The Code, section 1183 (now G.S. § 15-153), was enacted to prevent miscarriage of justice, but not to encourage prosecuting officers to try experiments with new forms, or to excuse them from the duty of ascertaining and following those which have been approved by long use or by statute. The object of the statute, in disregarding refinements and informalities, is to secure trials upon the merits, and solicitors will best serve that end by observing approved forms, so as not to raise unnecessary questions as to what are refinements and informalities and what are indispensable allegations.' The foregoing opinion was written 56 years ago, but what is said in it with respect to the drafting of warrants and bills of indictment is still applicable.

It is pointed out in State v. Ratliff, supra, that neither bad punctuation nor bad grammar vitiate an indictment.

In the case of State v. Poythress, supra [174 N.C. 809, 93 S.E. 920], the defendant was charged in the complaint or affidavit with the following crimes: '(1) That he engaged in the business of selling, exchanging, bartering, or giving away spirituous liquors, for the purpose of gain, directly or indirectly; (2) That he had in his possession 27 pints of such liquors for the purpose of sale; (3) That he received at one time, and in one package, more that one quart of whiskey, to wit, 27 pints.' His name appeared nowhere in the affidavit or complaint. The warrant of arrest, however, which was issued at the time the complaint was filed, contained the name of the defendant and was partly in these words: "These are therefore to command you forthwith to apprehend the said J. A. Poythress * * * to answer the above charge set forth in the affidavit, and be dealt with according to law.' ' The Court said, 'The complaint did not allege any offense against the defendant, as his name was not mentioned therein, but the warrant refers distinctly to the complaint, and besides was physically annexed to it. When this is the case, it may supply any omission or deficiency in the former, and if the two, when considered together as parts of the same proceeding, sufficiently inform the defendant of the accusation made against him, nothing else is necessary to be done.'

Likewise, in the case of State v. Whitley [208 N.C. 661, 182 S.E. 339], supra, the late Chief Justice Stacy, in considering a question similar to that now before us, said: 'The next position taken by the defendants is that the second count in the bill of indictment is fatally defective, in that the names of the defendants are not repeated in charging the scienter. State v. McCollum, 181 N.C. 584, 107 S.E. 309; State v. May, 132 N.C. 1020, 43 S.E. 819; State v. Phelps, 65 N.C. 450. This is a refinement which the act of 1811, now G.S. § 4623 (presently G.S. § 15-153), sought to remedy. State v. Parker, 81 N.C. 531. It provides against quashal for informality if the charge be plain, intelligible, and explicit, and sufficient matter appear in the bill to enable the court to proceed to judgment. State v. Beal, 199 N.C. 278, 154 S.E. 604. The exception is too attenuate.' He then quoted with approval from the opinion of Avery, J., in the case of State v. Shade, 115 N.C. 757, 20 S.E. 537, as follows: "The trend of judicial decision, and the tendency of legislation, is towards the practical view, that objections founded upon mere matter of form should not be considered by the courts unless there is reason to believe that a defendant has been misled by the form of the charge, or was not apprised by its terms of the nature of the offense which he was held to answer. Where the defendant thinks that an indictment otherwise objectionable in form fails to impart information sufficiently specific as to the nature of the charge, he may, before trial, move the court to order that a bill of particulars be filed; and the court will not arrest the judgment after verdict, where he attempts to reserve his fire until he takes first the chance of acquittal.' ' The motion in arrest of judgment is overruled. However, this does not mean that a warrant or bill of indictment may withstand such a motion when an indispensable allegation of the offense charged is omitted. State v. Scott, N.C., 84 S.E.2d 654; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Johnson, 226 N.C. 266, 37 S.E.2d 678; State v. Vanderlip, 225 N.C. 610, 35 S.E.2d 885; State v. Tarlton, 208 N.C. 734, 182 S.E. 481; State v. Tyson, 208 N.C. 231, 180 S.E. 85; State v. May, 132 N.C. 1020, 43 S.E. 819; State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L.R.A. 179; State v. Bunting, 118 N.C. 1200, 24 S.E. 118; State v. Wilson, 116 N.C. 979, 21 S.E. 692; State v. Bryan, 112 N.C. 848, 16...

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