State v. House, 12
Decision Date | 06 June 1978 |
Docket Number | No. 12,12 |
Citation | 295 N.C. 189,244 S.E.2d 654 |
Parties | STATE of North Carolina v. Richard E. HOUSE. |
Court | North Carolina Supreme Court |
Rufus L. Edmisten, Atty. Gen. by Jane Rankin Thompson, Associate Atty. Gen., Raleigh, for the State.
T. S. Royster, and John H. Pike, Oxford, for defendant.
The defendant's contention that his motion to dismiss the bill of indictment should have been granted for the reason that it contains no attestation by the foreman of the grand jury that twelve or more grand jurors concurred in the finding of a true bill is without merit.
G.S. 15A-644 provides:
"Form and content of indictment, information or presentment. (a) An indictment must contain:
(1) The name of the superior court in which it is filed;
(2) The title of the action;
(3) Criminal charges pleaded as provided in Article 49 of this Chapter, Pleadings and Joinder;
(4) The signature of the solicitor, but its omission is not a fatal defect; and
(5) The signature of the foreman or acting foreman of the grand jury attesting the concurrence of 12 or more grand jurors in the finding of a true bill of indictment. " (Emphasis added.)
G.S. 15A-621, provides:
G.S. 15A-623 provides:
In the present case, the indictment bears the signature of the foreman of the grand jury beneath the statement that the bill was found "a true bill" and the witnesses whose names were marked with an "X" were sworn by the foreman and examined by the grand jury. Since the statute requires the concurrence of at least 12 members of the grand jury in order to find an indictment a true bill, the foreman's signature attesting that the grand jury found the indictment to be a true bill, necessarily attests the concurrence of at least 12 of its members in this finding.
Although it is better practice for the foreman's entry upon the bill of indictment, over his signature, to state expressly that 12 or more grand jurors concurred in such finding, since even a directory provision of a statute should be obeyed, this is not necessary to the validity of the bill of indictment where the foreman's statement upon the bill is clearly so intended and there is nothing to indicate the contrary.
G.S. 9-27 (now repealed) provided, "The foreman of the grand jury shall mark on the bill the names of the witnesses sworn and examined before the jury." (Emphasis added.) In this connection, the word "shall" is equivalent to the word "must," which is used in G.S. 15A-644. Nevertheless, in State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932), this Court, speaking through Justice George Connor, said, with reference to the contention that an indictment should be quashed for the failure of the foreman of the grand jury so to mark thereon the names of the witnesses examined by the grand jury, the foreman having signed the bill and returned it into court as "a true bill":
"
In State v. Hines, 84 N.C. 810 (1881), speaking through Justice Ashe, this Court said:
In State v. Avant, supra, the failure of the foreman to mark the names of the witnesses examined by the grand jury, as directed by the statute, was brought to the attention of the court in time to permit this to be done while the grand jury was still present in the courtroom and this was permitted. However, in State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963), speaking through Justice Parker, later Chief Justice, this Court held that the above quoted provision of the old G.S. 9-27 was directory and not mandatory, and the bill of indictment should not be quashed because of such omission, even though it was not brought to the attention of the trial judge in time to permit such correction.
In State v. Calhoon, 18 N.C. 374 (1835), Chief Justice Ruffin, speaking for the Court, said:
In State v. Lancaster, 210 N.C. 584, 187 S.E. 802 (1936), the defendant contended that the indictment against him should be quashed, and the judgment pursuant to his conviction be arrested, for the reason that it did not appear by an endorsement of the foreman upon the indictment that any person whose name appeared on the back of the bill as a witness for the State had been sworn and testified before the grand jury. The court held that the motions to quash and in arrest of judgment were properly denied, saying in a Per Curiam opinion:
210 N.C. at 585, 187 S.E. at 802.
In 73 Am.Jur.2d, Statutes, § 19, it is said: To the same effect, see: 82 C.J.S. Statutes §§ 376, 380; 12 Strong, N.C. Index 3d, Statutes, § 5.3.
While, ordinarily, the word "must" and the word "shall," in a statute, are deemed to indicate a legislative intent to make the provision of the statute mandatory, and a failure to observe it fatal to the validity of the purported action, it is not necessarily so and the legislative intent is to be derived from a consideration of the entire statute. To interpret G.S. 15A-644 as requiring the quashing of a bill of indictment under the circumstances of this case would be to attribute to the Legislature an intent to paramount mere form over substance. This we decline to do.
The defendant's next contention is that it was error to deny his request that he, personally, be permitted to question prospective jurors on voir dire, and, subsequently, witnesses at the trial, in addition to questions propounded by his then counsel. There is no merit in this contention.
It is well settled that a defendant in a criminal action has a right to represent himself at the trial and cannot be required to accept the services of court-appointed counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976); State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); State v. McNeil, 263 N.C. 260, 139 S.E.2d 667 (1965); State v. Bines, 263 N.C. 48, 138 S.E.2d 797 (1964). It is, however, equally well settled that "(a) party has the right to appear in propria persona or by counsel, but this right is alternative," so that "(o)ne has no right to appear both by himself and by counsel." State v. Phillip, 261 N.C. 263, 268, 134 S.E.2d 386, 391 (1964); New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945); Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934). See also, State v. Robinson, supra....
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