State v. Higgins, 90

• Decision Date: 02 March 1966
• Docket Number: No. 90,90
• Citation: 266 N.C. 589,146 S.E.2d 681
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ike HIGGINS.

Page 681

146 S.E.2d 681

266 N.C. 589

STATE of North Carolina v. Ike HIGGINS.

No. 90.

Supreme Court of North Carolina.

March 2, 1966.

Atty. Gen., T. W. Bruton and Asst. Atty. Gen., George A. Goodwyn for the State.

Riddle & Briggs by Robert E. Riddle, Asheville, for defendant appellant.

PARKER, Chief Justice.

Defendant assigns as error the denial of his motion to quash the warrant. He contends the warrant should be quashed on three grounds: (1) 'The affidavit is made upon information and belief but yet made by the person allegedly assaulted'; (2) 'the affidavit is not signed by affiant but rather her name is typed therein'; and (3) the word 'feloniously' is used when the offense charged is a misdemeanor.

The affidavit and warrant are in contemplation of law one, if the affidavit is referred to in the warrant, as in the instant case. State v. Davis, 111 N.C. 729, 16 S.E. 540; State v. Sharp, 125 N.C. 628, 34 S.E. 264; State v. Gupton, 166 N.C. 257, 80 S.E. 989; Moser v. Fulk, 237 N.C. 302, 74 S.E.2d 729.

Ordinarily, the affidavit, complaint or information is the initial step in procuring the issuance of a proper warrant. G.S. § 15-19 requires a magistrate, before issuing a warrant, to examine 'the complainant and any witnesses who may be produced by him' on oath. G.S. § 15-20 provides in relevant part: 'If it shall appear from such examination that any criminal offense has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation * * *.'

Absent controlling constitutional or statutory provisions, as to whether the requisite facts may be stated on information and belief or must be stated on positive knowledge the courts are not in harmony. 22 C.J.S. Criminal Law § 309, p. 802; State v. Davie, 62 Wis. 305, 22 N.W. 411; Ex parte Blake, 155 Cal. 586, 102 P. 269.

In 22 C.J.S., ibid, § 309, it is said: 'Thus, in some jurisdictions the complaint, affidavit, or information must state the facts on complainant's positive knowledge, and where it states them on hearsay or on information and belief it is insufficient, at least where it does not state facts showing the source of information and the grounds of belief or where it does not state such facts with definiteness. In a number of states, however, an affidavit based on information and belief is sufficient.' So far as the briefs of counsel show and after a diligent search by us, this seems to be a novel question of law in this jurisdiction.

The affidavit upon which the warrant here is based sets forth the facts constituting the offense, a violation of G.S. § 14-33(a), (b)(3), with such accuracy and clearness that they may be easily understood by defendant Higgins, who is to answer them, and by a police court and by a judge and jury. In State v. Gupton, supra, it is said: 'It is not expected nor required, in the absence of special provision to the contrary, that an affidavit or complaint should be in any particular form, or should charge the crime with the fullness or particularity necessary in an information or indictment.' The affidavit here states the assault was made on affiant by defendant Higgins, and she must have known of her own knowledge the facts set forth in her affidavit. In our opinion, and we so hold, the affidavit here is sufficient.

G.S. § 15-19 requires the magistrate, before issuing a warrant, to examine the complainant on oath. It does not provide that the signature of affiant is necessary to the validity of the complaint or affidavit. In respect to such a complaint or affidavit, this is stated in 22 C.J.S. Criminal Law § 308, p. 801: 'In some jurisdictions the signature of affiant is not necessary to the validity of a complaint or affidavit, provided the name of affiant appears, it being only necessary that he should swear to the contents thereof. In other jurisdictions it must be signed at the bottom so as to authenticate the whole complaint * * *.' C.J.S. cites no North Carolina case in support of this statement.

This is said in 2 C.J.S. Affidavits § 20: 'However, according to the majority of authorities, in the absence of statute or rule of court to the contrary, a signature is not essential where the identity of affiant as such is otherwise sufficiently shown, as where he is named in the jurat or where the affidavit commences with his name. * * *' In 3 Am.Jur.2d, Affidavits, § 15, it is stated: 'In the absence of a statute or rule of court to the contrary, it is not necessary to the validity of an affidavit that it have the signature of the affiant subscribed thereto, although all the authorities and general custom recommend, as the better practice, that it be signed by the affiant.'

G.S. § 1-145 provides that the verification of pleadings must be by affidavit, but it does not specifically in terms or specifically require that it shall be subscribed by the affiant. In reference to The Code, § 258, which is now G.S. § 1-145, the Court held in Alford v. McCormac, 90 N.C. 151, that an affiant is not required by our statute to subscribe the affidavit. It is sufficient if the oath be administered by one authorized to administer oaths. As far back as 1790 there was before the superior courts of North Carolina the case of State v. Ransome, 2 N.C. (1 Hayw.) 1. The opinion of the Court delivered by Williams, J., is as follows: 'A man may as well be indicted on an affidavit not signed as if it was signed. The signing is only for the sake of evidence, to prevent one man being mistaken for another; and it shows, also, that it was done with deliberation.'

In the instant case the name of the affiant, Lela Jenkins, appears twice in the affidavit, and beneath her typed name appears these words: 'Sworn to and subscribed before me this 12th day of September 1965. (s) J. L. SLOOP, Deputy Clerk, Police Court.' Since G.S. § 15-19 does not require that the signature of the affiant be subscribed to the affidavit and since we have no rule of court or constitutional requirement to the contrary, we hold that the signature of affiant at the bottom of the affidavit is not necessary to the validity of the affidavit in the instant case, though it is the better practice that such an affidavit be signed by the affiant.

The use of the word 'feloniously' in the affidavit is surplusage, and will be so treated. Its use was not necessary in charging the commission of a misdemeanor. State v. Hobbs, 216 N.C. 14, 3 S.E.2d 431; State v. Shine, 149 N.C. 480, 62 S.E....