State v. Ledford

• Decision Date: 08 December 1903
• Citation: 45 S.E. 944,133 N.C. 714
• Parties: STATE v. LEDFORD.
• Court: North Carolina Supreme Court

45 S.E. 944

133 N.C. 714

STATE v. LEDFORD.

Supreme Court of North Carolina

December 8, 1903

Appeal from Superior Court, Yancey County; Hoke, Judge.

C. R Ledford was convicted of burning a barn, and he appeals. Affirmed.

The criminal court of a county was open at the time appointed by law, and there was an entry on the minutes. "The court having thus organized, the following proceedings were had and done," and then followed the indictment, with the indorsement showing the examination of witnesses under oath before the grand jury, and the finding that it was a true bill, which was signed by the foreman; all of which appeared to have been done without any interruption in the proceedings from the time of organization. Held, that a contention that it did not appear that the bill of indictment was returned by the grand jury in open court was untenable.

J. S Adams and E. J. Justice, for appellant.

The Attorney General, for the State.

WALKER J.

The defendant and others were indicted at August term, 1900, of the criminal court of Yancey county, for setting fire to and burning a barn, the property of one B. S. Hensley, and on motion of defendant there was a severance as to him. He was tried and convicted at fall term, 1902, of the superior court of said county (the criminal court having in the meantime been abolished), and from the judgment entered upon the verdict he appealed. The defendant assigns three errors which will be considered in the order in which they are presented in the record.

The first error assigned is that it does not appear in the record that the bill of indictment was returned by the grand jury in open court. It is without doubt necessary that the indictment should be presented in open court, and the return of the grand jury is made, or is presumed to be made, in court while it is actually in session, and at no other time. State v Collins, 14 N.C. 121. It appears from the transcript in this case that the criminal court of Yancey county was opened and organized on the 6th day of August, 1900, the time appointed by law, and that on the minutes is this entry: "The court having thus organized, the following proceedings were had and done." Then follows the indictment, with the indorsement showing the examination of witnesses under oath before the grand jury and the finding that it was a true bill, which is signed by the foreman. It is then stated that the defendant moved for a severance, and it was ordered by the court that he be allowed to plead and to be tried separately from his codefendants. The case was continued, and the defendant gave bond for his appearance at the next term. All this appears to have been done without any interruption in the proceedings of the court from the time of its organization. The case cannot well be distinguished from State v. Lee, 80 N.C. 483, in which Dillard, J., at page 485, says: ""There can be no doubt that it is necessary that a bill of indictment should be returned by the grand jury into open court, and we think, according to the proper construction and import of the transcript from Bladen superior court, the bill against the prisoner was returned as required by law. The transcript, after stating the court as opened and held on the eighth Monday after the second Monday in August, 1878, for the county of Bladen, a venire facias returned by the sheriff, a list of persons summoned as jurors, and the drawing and organization of a grand jury therefrom, uses the language, 'it is presented in the manner and form following,' and then comes the bill of indictment under which the prisoner was tried. The jury are required to come into court and make their return, and on coming in for this purpose they pronounce their return, or are presumed to do so, and the court records their return, and the record of the return thus pronounced is made by the use of the words, 'It is presented in manner and form following.' In legal import, the record having stated the court as open, and the grand jury sworn and charged, it is to be taken, when the record recites, 'It is presented,' etc., that the court is sitting, and therefore that the return is made in open court." Even if, under the facts and circumstances of this case, the defendant can avail himself of this alleged defect in the record by a motion in arrest of judgment, he having asked to be allowed to plead and for a severance, without moving to quash or making any other preliminary motion, we do not think there is any merit in the exception, and it is disallowed. State v. McBroom, 127 N.C. 528, 37 S.E. 193.

The defendant next excepted because, as he alleges, the superior court of Yancey county had no jurisdiction of the case, the same having been removed for trial by order of the court to the county of Mitchell, and having never been properly remanded to Yancey county so as to reinvest that court with jurisdiction. The facts relating to this exception are as follows: It appears from the record that the defendants C. R. Ledford, Will Ledford, and Neil Ledford were jointly indicted, and that at spring term, 1901, upon motion of Will Ledford, the case as to him was removed for trial to Mitchell county. The order of removal was improperly and ambiguously worded, and it did not appear clearly therefrom whether it was made as to Will Ledford alone or as to both Will and C. R. Ledford, and for that reason the superior court of Mitchell county, at September term, 1901, after finding and stating in its order the fact that the case was not removed as to C. R. Ledford, but only as to Will Ledford, and that there had been a severance of the trial before the removal, ordered that the "case of C. R. Ledford should remain" in the superior court of Yancey county, and should be stated on the docket of that court by the clerk, and stand for trial at the next term; and the court then required C. R. Ledford, who was at the bar of the court, to give surety for his appearance at the next term of Yancey superior court, granting him some indulgence so that he could find bail. The court further required its clerk to transmit a copy of that order to the clerk of the superior court of Yancey county, with directions to restore the case of State v. C. R. Ledford to the docket of the latter court, in accordance with the tenor of the order made in Mitchell superior court. It further appears that at fall term, 1901, of the superior court of Yancey county, in the case of State v. C. R. Ledford, the following entry was made on the minutes: "The state suggests the insufficiency of the Mitchell county record removing cause to Yancey. It is ordered that the cause be sent back to Mitchell county for a full and perfect record." The defendant's counsel contended that this order removed the case back to Yancey county. The language of this minute is untechnical, but we take it to mean that the court, by this order in the nature of a certiorari, directed a more perfect transcript of the proceedings in Mitchell county to be certified by the clerk of that court to the superior court of Yancey county. In the view we take of the case, this order was unnecessary, and, even if it was a proper one, it could not change our decision. The superior court of Yancey county had possession of the original record in the case, and could proceed regularly upon it, without any more perfect transcript from the superior court of Mitchell county.

At April term, 1902, of the superior court of Yancey county, the defendant C. R. Ledford submitted a motion to remove his case for trial to some adjacent county. This motion was denied in the following order of the court: "This cause coming on to be heard upon the motion of C. R. Ledford to remove this cause to some adjacent county for trial, now, after considering the affidavits filed, the motion to remove is denied. It is ordered that this cause be continued; and it is further ordered that the clerk of Mitchell county certify a copy of the transcript received by him, together with a transcript of the proceedings had and done in his court in the case of C. R. Ledford and William Ledford, and produce the same on or before the next term of this court. It is the further order of this court that the clerk of this court transmit a copy of this order, duly certified under his seal of office, to the clerk of the superior court of Mitchell county within the first fifteen days after the adjournment of this court." The last order explains the one made at fall term, 1901, and shows, as we have already construed it, that the latter order merely required to be certified a copy of the proceedings of the superior court of Mitchell county, in which court the record had been corrected so that it would speak the truth, and show that the cause had not been removed to that county as to C. R. Ledford. We have set forth fully the material parts of the record which are necessary to be considered in connection with this exception, and it appears therefrom that as a fact the case of the defendant C. R. Ledford was never removed from Yancey county, and the confusion and uncertainty in the transcript which was sent to the superior court of Mitchell county were caused merely by a misprision of the clerk, or some misapprehension on his part as to what had actually been done. This being so, the defendant's objection to the jurisdiction is groundless.

But, if the case had been properly removed, we do not think the defendant would have had any legal cause to complain. By its order at September term, 1901, the superior court of Mitchell...