State v. Hedgebeth

• Decision Date: 10 December 1947
• Docket Number: 76
• Parties: STATE v. HEDGEBETH.
• Court: North Carolina Supreme Court

45 S.E.2d 563

228 N.C. 259

STATE v. HEDGEBETH.

No. 76

Supreme Court of North Carolina

December 10, 1947

The motion of defendant Hedgebeth to set aside the verdict and judgment rendered against him at a previous term of the court, and for a new trial, was heard by Judge Burgwyn at the July Term, 1947, of the Superior Court of Washington County.

Upon the record, the defendant's petition and affidavits, and the oral testimony of Sheriff Reid, the following judgment was entered:

'It appearing to the Court that the defendant was indicted upon a warrant issued by the Recorder's Court of Washington County on December 28, 1946, and that three days later a preliminary hearing was given him before the Recorder of Washington County on said charge at which time he and another were bound over to the Superior Court of Washington County upon a charge of highway robbery, it being alleged by the State that he, with another, did by force and arms and after placing him in fear for his life, take from the person of Delmer Wilkins a sum of money in the amount of One Hundred Twenty Seven ($127.00) Dollars; it further appearing to the Court that bond in the sum of Five Hundred ($500.00) Dollars was required of the defendant Chester Hedgebeth, which he was unable to give and that in default thereof he was placed in the county jail of Washington County to await trial on said charge; that thereafter and on the 6th day of January, 1947, the regular Superior Court of Washington County was convened and at said term a bill of indictment was returned by the grand jury against the said Chester Hedgebeth and another, charging them and each of them with the crime of highway robbery from the person of Delmer Wilkins; that thereafter and during said term the defendant was called to the bar for trial with his co-defendant; that each of the defendants pleaded not guilty; that inquiry was made of them if they had counsel and upon their answering in the negative the Court proceeded to trial; that after the introduction of testimony by the State the defendant Chester Hedgebeth took the stand voluntarily and gave evidence tending to show that he was not guilty; that thereafter the Judge, Honorable J. Paul Frizzelle, presiding, charged the jury upon the questions of law and facts and that thereafter the jury returned a verdict and for that verdict said the defendant and his co-defendant were guilty; that thereupon the defendant was sentenced by the Judge presiding to a term of years in the State's Prison, to-wit, not less than nine nor more than ten years; that thereafter and on the 9th day of July, 1947, the defendant sued out a writ of habeas corpus which was duly signed by Judge Luther Hamilton, one of the Judges of the Superior Court of North Carolina commanding that the said defendant be produced in open court at the July term of the Superior of Washington County, and said writ having been served upon the proper authorities of the State's prison the said defendant was produced in open court of Washington County on July 9, 1947, at which time he was represented by Attorney W. L. Whitley, a member of the Bar of Washington County; that said attorney presented the cause of the defendant to the Court upon delayed motion which the Court gladly heard; that the trial, conviction and sentence of the said defendant at the January Term, 1947, of said Court be set aside and declared void and that the petitioner, Chester Hedgebeth be granted another trial, or a new trial, and for such other and further relief as to the Court seemed proper, basing his argument upon alleged denial of the defendant's right by the Court, in the expediency of the trial, in the lack of counsel for the defendant and upon the general ignorance of the defendant of his rights. The Court heard the oral testimony, on behalf of the prosecution, of Sheriff Reid, the high sheriff of Washington County.

'The Court finds as a fact that the father and mother of the defendant resided in Currituck County, a distance of some fifty-eight miles or more from the county seat of Washington County, and that the wife of the defendant resided in Washington County and had knowledge of his incarceration and of the nature of the charge preferred against him; that the defendant had sufficient mental capacity to realize the nature of the charge against him and had opportunity, had he been financially able to so do and desired to so do, to procure counsel, and that the Court, at neither the hearing before the Recorder and the trial of the Superior Court, appointed counsel to represent the defendant's interest. The Court also finds the charge preferred against the defendant and upon which he was tried was not and is not a capital offense under the laws of the State of North Carolina. The Court is of the opinion that the due process clause of the Constitution of the United States and of the Constitution of the State of North Carolina have in nowise been violated in the trial of this cause and that the applicant is detained by virtue of a judgment of a Court of competent jurisdiction, and, therefore, the motion of the defendant's counsel and the defendant is denied and it is the judgment of the Court that the defendant be remanded to custody of the Warden of the State's Prison and the writ of habeas corpus dismissed.'

The writ of habeas corpus having been discharged, and defendant's motion denied, the defendant petitioned the Supreme Court of North Carolina for writ of certiorari, which was allowed, and in response to the writ the record was presented to this Court for review.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Wilford L. Whitley, Jr., of Plymouth, for Chester Hedgebeth.

DEVIN Justice.

The defendant Hedgebeth asks us to review the judgment below, assigning as grounds for relief that in the trial in the Superior Court of Washington County his constitutional rights were violated and due process of law denied him, in that he was without counsel, that he was not aware or informed of his rights, and that he was put upon his trial for the alleged commission of a serious felony within too short a time after his arrest. He alleges his innocence of the crime charged against him.

From the findings of fact made by the Judge who heard the defendant's motion below, based upon the averments in his petition and the oral evidence heard, upon which defendant's motion was denied, it sufficiently appears that on December 28, 1946, defendant Hedgebeth and one Andrew Chesson were arrested charged with assault with deadly weapon and robbery of a sum of money from the person of Delmer Wilkins, and that on December 31, 1946, these two defendants were tried in the Recorder's Court of Washington County, and probable cause having been found, were placed under bond for their appearance at the next term of the Superior Court of the county. The required bond of $500 was not given and the defendants remained in jail. The next term of the Superior Court began January 6, 1947. At this term bill of indictment in due form charging the defendants with the felony of robbery was returned by the grand jury a true bill, and during the term the case was called for trial. Each defendant pleaded not guilty. Inquiry was made of them by the presiding Judge Frizzelle if they had counsel, to which they answered in the negative. No counsel was assigned, nor was the assignment of counsel requested. The trial apparently was conducted in accordance with correct procedure in this jurisdiction and no criticism in that respect is offered. The defendant Hedgebeth voluntarily went on the stand and testified as a witness in his own behalf, his testimony tending to show he was not guilty. In the absence of suggestions to the contrary, under the rule in this State, it will be presumed the trial judge correctly instructed the jury as to the law and facts of the case. G.S. s 1-180; State v. Hargrove, 216 N.C. 570, 5 S.E.2d 852; Bell v. Brown, 227 N.C. 319, 322, 42 S.E.2d 92. The jury returned verdict of guilty as to both defendants, and they were sentenced to State's Prison for terms of nine to ten years.

The record further discloses that defendant Hedgebeth was a tenant farmer, resident in Washington County, and 24 years of age; that his schooling did not extend beyond the third grade; and that his father and mother lived in another county some 58 miles from the place of trial. The judge who heard the motion also found that the wife of the defendant resided in Washington County, and that she had knowledge of his incarceration and of the nature of the crime charged. The defendant makes the point that this last mentioned fact does not appear in the written record. However, as the judge heard the oral testimony of the sheriff, which was not sent up, it will be presumed his finding was based on evidence he heard, in the absence of some showing to the contrary. Clayton Banking Co. v. Farmer's Bank, 211 N.C. 328, 190 S.E. 472.

The defendant's evidence, and particularly the affidavit of his father, would tend to indicate that the defendant was ignorant and unacquainted with business or legal affairs that he had not been arrested before and was inexperienced in court procedure; that he was not of average mentality; that his father was not informed of his arrest, and, if he had been so advised in time, would have procured counsel. However, it was found by the judge from the evidence before him, 'that the defendant had sufficient mental capacity to realize the nature of the charge against him and had opportunity, had he been financially able to so do, and desired to so do, to procure counsel. ' The defendant and his counsel were present at the hearing. The charge in the bill of indictment...