State v. Honeycutt

• Decision Date: 29 April 1953
• Docket Number: No. 218,218
• Citation: 237 N.C. 595,75 S.E.2d 525
• Parties: STATE, v. HONEYCUTT.
• Court: North Carolina Supreme Court

Page 525

75 S.E.2d 525

237 N.C. 595

STATE, v. HONEYCUTT.

No. 218

Supreme Court of North Carolina.

April 29, 1953

Wade E. Brown, and Trivette, Holshouser & Mitchell, Boone, for the defendant-appellant.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Robert L. Emanuel Member of Staff, Raleigh, for the State.

JOHNSON, Justice.

First, the defendant urges that the evidence was insufficient to carry the case to the jury over his motion for judgment as of nonsuit made at the conclusion of all the evidence. This brings into focus the evidence relied on by the State.

Will J. Harmon testified: 'I hold the position of Deputy Sheriff with Avery County. I was Deputy Sheriff on the 25th day of June, 1952. I know Bob Honeycutt. * * * On that day Mr. E. M. Harmon gave me a warrant for him for a worthless check. I went up the road and * * * met him and his son in a car. * * * I went a little piece and turned around--came back down the road and overtook them--they was driving slow, and I blowed and they pulled out. His son was driving. * * * I parked my truck down in the middle of the road. It is a one-way road. I stopped in front of his truck and went back-had the warrant in the glove compartment of my truck--went back got it in my hand and went on the lefthand side of the car. Bob Honeycutt was on the lefthand side of the car. I said, 'Mr. Honeycutt, I have got a warrant for you,' * * * He said,'What for, can't you read it?' I commenced reading it--read down to where it said worthless check. He said, 'you are scared too bad to read it'--snatched it out of my hand. * * * I opened the door and took Mr. Honeycutt by the arm and pulled him out. He said, 'I ain't going with you.' Well, I pulled him out, * * * the boy said to me, 'You are going to get your G--d--head beat off.' I said, 'I am a deputy sheriff and a sick man, besides,' and just went dragging him on down. He said, 'I ain't going, you will have to take me.' I got nearly down to the truck, the boy (defendant's son) come around back of the car. (Then followed a narrative account of the argument which ensued between officer Harmon and defendant's son) * * * the boy then hit me * * *. I ran to get the key out of the car (defendant's); the boy grabbed me and held me. He told his daddy to get the key and his daddy got it. * * * they jumped on the car and run and I ordered them both under arrest and they both jumped in the car and run. * * I ran them for three miles, they got away. * * * He (defendant) had the warrant when he left. I don't know what he done with it.'

The defendant testified in part: '* * * We pulled out on the side of the road and he (Deputy Harmon) passed us and he come back by the side of the truck and said, 'Is this Bob Honeycutt?' and I answered, 'Yes.' He said, ' I have got a paper here for you,' and he read it and handed it to me. I layed it down on my lap, reached in to get my glasses. * * * (cross-examination) * * * When Mr. Harmon told me he had a warrant or paper for me, I did not tell him he was too scared to read it. He handed it to me in the car and said, 'Read it."

As bearing on the question of nonsuit, the defendant's chief contention is that the State's case fails for want of specific proofs respecting the facts in connection with the issuance and contents of the warrant, such as (1) who issued the writ, (2) whether it contained an order of arrest, (3) whether it was issued by a justice of the peace of Avery County, or some other county, and (4) if the latter, whether it was properly endorsed as required by G.S. § 15-22. The defendant urges that in the absence of specific proofs in respect to these factors, the State failed to show that the arresting officer was acting under valid process.

As to this contention, it is noted from a perusal of the record that in the trial below the defendant did not challenge the validity of the warrant. And the rule is that in the absence of evidence to the contrary it is presumed that the acts of a public officer are in all respects regular. State v. Gaston 236 N.C. 499, 73 S.E.2d 311; State v. Rhodes, 233 N.C. 453, 64 S.E.2d 287; State v. Wood, 175 N.C. 809, 95 S.E. 1050. Therefore the State had the benefit of the presumption that Deputy Sheriff Harmon was acting under a warrant and order of arrest which were legally adequate to authorize the arrest.

The evidence was sufficient to take the case to the jury, and the court below properly overruled defendant's motion for judgment as of nonsuit.

Assignments of error Nos. 3, 4 and 5 (based on Exceptions Nos. 6, 7, and 8) relate to the court's reference to the evidence and statement of contentions in charging the jury. However, as to these assignments, the record discloses that the matters complained of passed unchallenged below. The rule is that a misstatement of the evidence, or of contentions of the parties arising on the evidence must...