State v. Johnson

• Decision Date: 27 November 1957
• Docket Number: No. 515,515
• Citation: 100 S.E.2d 494,247 N.C. 240
• Court: North Carolina Supreme Court
• Parties: STATE, v. Joseph JOHNSON.

Page 494

100 S.E.2d 494

247 N.C. 240

STATE, v. Joseph JOHNSON.

No. 515

Supreme Court of North Carolina.

Nov. 27, 1957

George B. Patton, Atty. Gen., T. Wade Bruton, Harry W. McGalliard, Samuel Behrends, Jr., Asst. Attys. Gen., for the State.

E. R. Temple, Smithfield, for defendant.

DENNY, Justice.

The defendant takes the position in this Court, for the first time, that the judge of the Recorder's Court of Smithfield committed error in not sustaining his plea in abatement and dismissing the case, instead of transferring it to the Recorder's Court of Johnston County for trial as requested by him in his motion. Consequently, he insists that his plea in abatement interposed in this Court should be allowed and the action dismissed.

The warrant upon which the defendant was tried in the Recorder's Court of Johnston County and in the Superior Court, sufficiently charged the offenses for which he was tried. Moreover, it is disclosed by the record that the offenses charged were committed within the territorial jurisdiction of the Recorder's Court of Johnston County. Furthermore, there is nothing on the face of the warrant to indicate otherwise. The defendant entered no plea in abatement in the Recorder's Court of Johnston County but instead entered a plea of not guilty and went to trial on the warrant as issued by the Municipal Recorder's Court of Smithfield. From his conviction and the judgment imposed in that court, he appealed to the Superior Court where he was tried only upon the charge of drunken driving. He interposed no plea in abatement in the Superior Court, but entered a plea of not guilty and again went to trial on the original warrant.

Here, as in the case of State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642, 644, the defendant makes no contention that the warrant fails to charge the criminal offense for which he was tried, or that the punishment imposed by the court is in excess of that authorized by law for driving a motor vehicle upon the public highways of the State while under the influence of intoxicating liquors or narcotics.

In the last cited case, the defendant contended that the warrant issued in the Trial Justice's Court, on which he was bound over to the Recorder's Court of Edgecombe County, was absolutely void. He was tried upon the warrant in the Recorder's Court and found guilty. From the judgment imposed he appealed to the Superior Court where he was again tried on the original warrant and convicted. The defendant excepted to the judgment entered and appealed to the Supreme Court. This Court, speaking through Parker, J., said 'The defendant by his general appearance in the Trial Justice's Court and the Recorder's Court and his plea of guilty in the Superior Court waived irregularity, if any, in the issuance of the warrant or any objection predicated upon any irregularity in the warrant, provided the warrant charged every element of an assault with a deadly weapon. State v. Harris, 213 N.C. 648, 197 S.E. 142; State v. Abbott, 218 N.C. 470, 11 S.E.2d 539; State v. Turner, 170 N.C. 701, 86 S.E. 1019; State v. Cale, 150 N.C. 805, 63 S.E. 958; People v. Jury, 252 Mich. 488, 233 N.W. 389. * * * Any defect in the process by which a defendant is brought into court may be waived by him by appearing before the court having jurisdiction of the case. State v. Turner, supra; State v. Cale, supra. The defendant may waive a constitutional right relating to a mere matter of practice or procedure. Miller v. State, 237 N.C. 29, 74 S.E.2d 513. If the law were otherwise, a defendant could take his chance of acquittal on a trial on the merits and, if convicted, contend that he was not in court.'

In the case of State v. Harris, 213 N.C. 648, 197 S.E. 142, 144, the defendant was convicted in the Municipal Court of the City of High Point of operating a motor vehicle upon the public highways of the state while under the influence of intoxicating liquor. He appealed to the Superior Court and upon a trial de novo was again convicted and appealed to the Supreme Court. The defendant assigned as error the refusal of the court below to allow his motion in arrest of judgment for the reason that the warrant was not signed by a proper officer. It appears from the record that the defendant entered a general appearance both in the Municipal Court and in the Superior Court. In overruling the assignment of error, this Court said: 'Such an appearance was a waiver by the defendant of any objection predicated upon any irregularity in the warrant.'

In State v. Turner, 170 N.C. 701, 86 S.E. 1019, 1020, the defendant was convicted in the Municipal Court of High Point for having liquor in his possession for the purpose of sale, and he appealed to the Superior Court. In the...