State v. Levy
| Decision Date | 08 April 1931 |
| Docket Number | No. 321.,321. |
| Citation | 158 S.E. 94 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. LEVY. |
Appeal from Superior Court, Durham County; Stack, Judge.
Mose Levy was convicted for a breach of C. S. § 4237, relating to breaking a seal on a railroad car or breaking or entering such car, and also for larceny and for receiving stolen property, and he appeals.
No error.
The defendant was indicted for a breach of C. S. § 4237, which is as follows:
In addition, the indictment charged the defendant with larceny and with receiving stolen property knowing it to have been stolen. The jury returned a general verdict: "Guilty thereof in manner and form as charged in the bill of indictment." Judgment was pronounced, and the defendant appealed upon exceptions stated in the opinion.
McLendon & Hedrick and Long & Young, all of Durham, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
When this case came on for trial, there was another in which A. M. Maddry, J. O. D. Gholson, Arthur O'Kelly, and Luther Smith were jointly charged with the offenses for which the defendant Levy was prosecuted. A nolle prosequi was entered as to O'Kelly. and Maddry, Gholson, and Luther Smith pleaded guilty. Before judgment was pronounced against them, the case against Levy was called, and before pleading Levy moved that the indictment against him be quashed on the ground that it had been returned as a true bill upon testimony which was incompetent because based entirely upon hearsay and that no competent evidence had been heard by the grand jury. He offered to prove this by the witnesses who had testified before that body. The trial judge refused to hear testimony to this effect, but said he would permit the defendant to prove during the trial that the bill had been returned upon "improper and insufficient evidence."
When the state rested its case, the defendant introduced the two witnesses who had been called before the grand jury, each of whom would have testified (in fact Brown did testify) that his information of the defendant's participation in the offenses charged was based entirely upon hearsay. King, the other witness, then testified that he had been examined by the grand jury; whereupon the court stated that the proposed evidence was not pertinent and stopped the examination. So the main contention of the defendant is this: Not merely that incompetent evidence was considered, but that no competent evidence was heard by the grand jury, and that, for the latter reason, the bill should have been quashed.
Disregarding as unnecessary for our present purpose the distinction between a motion to quash an indictment and a plea in abatement, we prefer to decide the question squarely on the merits. In reference to it, investigation discloses diversity of opinion. Some of the text-books and decisions adhere to the doctrine that the grand jury should not find an indictment upon insufficient evidence. Others say that the sufficiency of the evidence before the grand jury cannot be inquired into by the superior court on a plea to abate or a motion to quash. By others it is written that an indictment should not be returned as a true bill upon the testimony of witnesses who are incompetent. It may be noted that confusion is sometimes caused by using the word "incompetent" as synonymous with "disqualified." Annotation, 31 A. L. R. 1479; 28 L. R. A. 324.
In State v. Cain, 8 N. C. 352, it was held that a bill must be quashed if found by a grand jury upon the testimony of witnesses who were not duly sworn; and in State v. Roberts, 19 N. C. 540, it was said that...
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State v. Davis
...these excep-tions, in so far as they challenge the action of the grand jury, are without merit in view of what was said in State v. Levy, 200 N. C. 586, 158 S. E. 94. With respect to the venue of the offenses, it is sufficient to say that the indictments properly bring the case within the j......
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Stem v. Turner
...solely hearsay evidence before the grand jury is legally insufficient to support an indictment. 6 Appellee relies on State v. Levy, 200 N.C. 586, 158 S.E. 94 (1931); State v. Goldberg, supra, n. 5; State v. Squires, 265 N.C. 388, 144 S.E.2d 49 (1965). Appellee contends that the North Caroli......
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State v. Goldberg, 433
...and belief his testimony was hearsay, and they have never at anytime discussed with him the charges pending against them. In State v. Levy, 200 N.C. 586, 158 S.E. 94, Adams, J., for the Court points out the distinction between incompetent evidence and testimony of disqualified witnesses bef......
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State v. McCoy
...convicted on the basis of unsworn remarks of potential witnesses—in this case Mr. Kimel and his unnamed colleagues. State v. Levy, 200 N.C. 586, 587, 158 S.E. 94, 95 (1931) (noting that "the testimony of unsworn witnesses" is "illegal In short, because the trial court had no personal knowle......