State v. Jackson

• Decision Date: 15 March 1972
• Docket Number: No. 55,55
• Citation: 187 S.E.2d 27,280 N.C. 563
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Harold Edward JACKSON.

Page 27

187 S.E.2d 27

280 N.C. 563

STATE of North Carolina v. Harold Edward JACKSON.

No. 55.

Supreme Court of North Carolina.

March 15, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Claude W. Harris, for the State.

Wallace C. Harrelson, Public Defender, for defendant appellant.

BOBBITT, Chief Justice.

Each count charged a violation of G.S. § 90--88, which provided: 'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this article (Chapter 90, Article 5).' The First count charged that defendant had possession and control of the described narcotic drugs; the Second count charged that defendant dispensed them to one Neil Cooper, age 15. The State offered no evidence that defendant had possession and control of any narcotic drugs except those he dispensed to Neil.

Punishment for violation of G.S. § 90--88 is set forth in G.S. § 90--111. Section (a) of the latter statute provides a penalty for first violation by 'any person' of not more than five years in prison. Section (c) increases the penalty to a Minimum of ten years if the offense of dispensation is 'to a minor by an adult.'

Defendant's brief does not bring forward and discuss the assignments of error based on defendant's exceptions to the overruling of his motions for judgments as in case of nonsuit.

The record shows that '(p)rior to the introduction of evidence by the State, the defendant, through counsel, moved to quash the bill of indictment.' Assignment of Error No. 1 is based on defendant's exception to the denial of this motion.

The record does not disclose the grounds, if any, advanced in the court below in support of the motion to quash. On appeal, defendant asserts (1) that the second count does not charge a criminal offense punishable under G.S. § 90--111(c) in that it does not allege that defendant is an adult; and (2) that G.S. § 90--111(c) is unconstitutionally vague and indefinite in that it does not define the words 'minor' and 'adult' as used therein.

While the jury deliberated, the court, allowing the solicitor's motion therefor, entered an order purporting to amend the Second count by including therein an allegation that defendant was 'an adult person, age 25.' Defendant's Assignment of Error No. 28, based on his exception to the purported amendment, has merit. 'In the absence of statute, an indictment cannot be amended by the court or prosecuting officer in any matter of substance without the consent of the grand jury which presented it.' 42 C.J.S. Indictments and Informations § 230a. Accord: State v. Corpening, 191 N.C. 751, 133 S.E. 14 (1926); State v. Dowd, 201 N.C. 714, 161 S.E. 205 (1931); State v. Cole, 202 N.C. 592, 163 S.E. 594 (1932). See Comment Note, Power of court to mkae or permit amendment of indictment, 17 A.L.R.3d 1181 et seq. We do not consider to what extent, if any, a bill of indictment may be amended with the consent of a defendant and his counsel. Suffice to say, this defendant did not consent to the amendment.

We hold the Second count, without amendment, sufficiently charged a criminal offense in violation of G.S. § 90--88 which, if committed by an adult person, is punishable under G.S. § 90--111(c). G.S. § 90--111(c) does not define or create a criminal offense. The age of defendant is not an element of the crime; it is relevant only on the subject of punishment. By analogy, under former G.S. § 14--33 (Volume 1B, Recompiled 1953) simple assault was punishable as a general misdemeanor when committed by a male person over 18 years of age on a female person, but punishable only by thirty days imprisonment if committed by a male person 18 years of age or less. Since it was not an essential element of the criminal offense, it was not required that the indictment allege that the defendant was a male person over 18 years of age at the time of the alleged assault. State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958), and cases cited; State v. Beam, 255 N.C. 347, 121 S.E.2d 558 (1961). Here, although the indictment did not allege the age of defendant or that he was an adult, the State offered evidence that defendant was 25 years of age and The jury so found. With reference to the second count, the trial judge instructed the jury as follows: '(I)f the State has satisfied you beyond a reasonable doubt, the burden being on the State to so satisfy you, that on the 27th day of September, 1970, this defendant was twenty-five years of age, or more than twenty-one years of age, and that Neil Cooper was fifteen years of age, having been born on November 23, 1954, and that the defendant dispensed to him any quantity of Marijuana or LSD, and if the State has so satisfied you beyond a reasonable doubt, it will be your duty to convict him as charged in the second count of the bill of indictment. If the State has failed to so satisfy you, it will be your duty to acquit him of that second count.'

Defendant contends he was prejudiced because he was not advised by the indictment that he was to be tried for an offense punishable under G.S. § 90--111(c). This contention is without substance. The second count alleges explicitly the age of Neil Cooper. No allegation was required to notify defendant of his own age.

Defendant seems to rely largely on State v. Miller, 237 N.C. 427, 75 S.E.2d 242 (1953), which holds: 'Where a statute prescribes a higher penalty in case of repeated convictions For similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a Second or Subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty.' (Our italics.) Although the decision in Miller was based primarily on G.S. § 15--147, due process would seem to require that the State identify by allegation any previous conviction of defendant on which it intended to rely as a basis for the imposition of greater punishment. In such case, the identity and relevance of prior court proceedings are involved. Absent such allegations, the defendant would be brought to trial without notice of matters necessary to enable him to prepare his defense. Neither a statute nor an infringement of due process supports defendant in the present case.

There is no merit in defendant's contention that G.S. § 90--111(c)--the punishment statute--is unconstitutional because it fails to define 'minor' and 'adult' as used therein. Under the common law, persons, whether male or female, are classified and referred to as Infants until they reach the age of twenty-one years. Gastonia Personnel Corp. v. Rogers, 276 N.C. 279, 281, 172 S.E.2d 19, 20 (1970). 'In the law the word 'infant' refers to a person who has not arrived at his majority as fixed by law, and the word 'infancy' as used in law means minority or nonage.' 42 Am.Jur.2d Infants § 1. Except when otherwise provided by statute, a person, male or female, is a minor until he attains the age of twenty-one years. Upon attaining the age of twenty-one years a person reaches his or her majority and is an adult. These common-law definitions apply to the words 'minor' and 'adult' as used in G.S. § 90--111(c) as of September, 1970.

We take notice of the fact that the Generla Assembly of 1971 enacted Chapter 585 of the Session Laws of 1971, which provides: ' § 48A--1. Common law definition of 'minor' abrogated.--The common law definition of minor insofar as it pertains to the age of the minor is hereby repealed and abrogated.' ' § 48A--2. Age of minors.--A minor is any person who has not reached the age of 18 years.' We need not consider in what respects, if any, the words 'minor' and 'adult' as used in G.S. § 90--111(c) have been modified by the 1971 Act. Under any permissible definition, a 15-year-old boy is a minor and a 25-year-old man is an adult.

Defendant assigns as error the admission of testimony of Officers Heffinger and Cox as to statements by defendant on October 12, 1970, in defendant's apartment, which testimony is summarized in our statement of facts.

After Heffinger was put on the stand and gave testimony leading up to the statements that defendant was alleged to have made on the occasion of his arrest, defendant's counsel 'moved for a voir dire examination concerning the voluntariness of any statement made to the investigating officer.' The jury was excused and a Voir dire hearing was conducted. The State offered the testimony of Heffinger. Defendant's counsel 'put the defendant on for the limited purpose of this voir dire examination.' The testimony, except when quoted, is summarized below.

On Voir dire, Heffinger testified that he advised defendant with particularity of each of his constitutional rights as stated in Miranda; that defendant said he understood his rights; that defendant appeared to be normal and to understand what Heffinger said to him; that he made no threats against defendant to get him to make a statement; that he did not offer defendant any inducement or hope of reward; and that, after having been so advised by Heffinger, 'certain conversation did follow.' Thereupon, Heffinger was cross-examined by defendant's counsel. On cross-examination, he testified that defendant made no specific statement or comment 'as to his right to have a lawyer' and that defendant did not tell him 'that he had been taking LSD on that particular day.'

On Voir dire, defendant testified that three officers, Heffinger, Cox and a third officer (later identified as Gibson in Cox's testimony before the jury), came to his apartment on West Fisher Avenue around twelve o'clock noon on October 12, 1970; that when Heffinger knocked on the door, he stated he was a police officer and defendant 'let him in'; that defendant let 'them' in after 'they' told him they had a search warrant; that, upon entering the apartment, one of the officers handcuffed defendant while the search warrant was being...