State v. Hargett

• Decision Date: 27 September 1961
• Docket Number: No. 73,73
• Citation: 255 N.C. 412,121 S.E.2d 589
• Parties: STATE, v. Samuel HARGETT
• Court: North Carolina Supreme Court

Page 589

121 S.E.2d 589

255 N.C. 412

STATE, v. Samuel HARGETT

No. 73

Supreme Court of North Carolina.

Sept. 27, 1961

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. G. A. Jones, Jr., for the State.

Kennedy W. Ward, New Bern, for defendant.

MOORE, Justice.

Before pleading to the bill of indictment, defendant filed a motion alleging that he was arrested and placed in jail on 3 January 1961, no warrant was ever issued, no preliminary hearing was held, and he was thereby denied due process of law. He requested that all proceedings be stayed and abated until a preliminary hearing or coroner's inquest was had. The motion was overruled.

The bill of indictment was returned by the grand jury at the January term, 1961. Counsel was appointed for defendant 8 February 1961. When a person is arrested without a warrant, the arresting officer shall inform such person of the charge against him, and shall immediately, or 'as soon as may be,' take him before a magistrate and, on proper proof, a warrant shall be issued; an officer failing to comply with these requirements is subject to penalties. G.S. § 15-45 and G.S. § 15-47. 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 esssential prerequisite to the finding of an indictment in this jurisdiction. '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. See also State v. Doughtie, 238 N.C. 228, 232, 77 S.E.2d 642; State v. Cale, 150 N.C. 805, 808, 63 S.E. 958. If defendant was at a disadvantage in preparing for trial through ignorance of the nature of the evidence against him, ample remedies were available to him. He might have obtained a hearing at any time by petition for habeas corpus. In fact, he requested and obtained a bill of particulars. The ruling on the motion was proper.

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

The State's evidence, in summary, is as follows: The deceased, Sgt. Paul Weingardner, and Billy Parrish, together with two other soldiers, left Fort Bragg on 1 January 1961 in Weingardner's automobile and went to New Bern and to the home of one McDaniel. Weingardner remained there while the others took the car and visited several places including Holland's Drive-In. Defendant had joined them on their rounds. While they were at Holland's, Weingardner rode up in a taxi and accused Parrish of stealing his car. Abusive language passed between Parrish and Weingardner. Weingardner took his car keys and tried to drive but was too drunk. Parrish drove the car. There were five persons in the car including Weingardner and defendant. They visited another place, obtained liquor, and returned to Holland's. Later Parrish and defendant left in the car to take Weingardner to the bus station to put him on a bus for Fort Bragg. About 20 minutes later Parrish and defendant returned, stating they had put Weingardner on a bus. Later in the evening defendant said that Weingardner was in his (defendant's) car. On 4 January 1961 the body of Weingardner was found in a creek or canal at the City dump. A pathologist performed an autopsy, and testified: 'The cause of death was drowning. * * * There was no evidence of trauma on the body. * * the ethal alcohol content of the blood was 4.0 milligrams per milliliter. * * * A person with this much alcohol content could have been unconscious or could have been in what might be called a helpless condition. * * * death has been reported due to acute alcoholism in a number of cases; * * * the range of alcoholic content in the blood in these cases usually is somewhere from 5.5 to anywhere to 7.5. * * * I found water and fluid in the trachea and lungs. * * * When a person drowns, he does get water in his lungs. * * * The level of the alcohol found in the blood is not enough to kill this man.' Parrish testified at the trial: Defendant drove the car from Holland's and he (Parrish) was lying in the back seat. When the car stopped he saw defendant and Weingardner in front of the car. Defendant had Weingardner 'by the chest, by the clothes,' and shoved him in the ditch. Parrish looked in the ditch and saw Weingardner lying face down in the water. Defendant called and Parrish got in the car and they drove off.

This evidence is sufficient to take the case to the jury. The inference is permissible that defendant intentionally shoved Weingardner face down into the water while he was in a drunken and helpless condition, and left him there, and as a result he drowned.

In the charge the court instructed the jury that the State contended the defendant was guilty by reason of aiding and abetting even if he should be found not guilty as principal in the first degree. The court then gave full and correct instructions as to the law relating to aiding and abetting in the commission of crime. And finally, the court charged: '* * * if you find from all the evidence and beyond a reasonable doubt that the...