State v. Long

• Decision Date: 24 May 1972
• Docket Number: No. 7215SC353,7215SC353
• Citation: 188 S.E.2d 690,14 N.C.App. 508
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Grady LONG, Jr.

Page 690

188 S.E.2d 690

14 N.C.App. 508

STATE of North Carolina v. Grady LONG, Jr.

No. 7215SC353.

Court of Appeals of North Carolina.

May 24, 1972.

Clarence Ross, Graham, for defendant appellant.

PARKER, Judge.

The indictment in Case No. 71 CrS4792 fails to state the name of the person to whom defendant allegedly sold marijuana or that the name of such person is unknown. Lacking either of these allegations, the indictment is fatally defective and cannot sustain the judgment in that case. State v. Bennett, 280 N.C. 167, 185 S.E.2d 147. In fairness to the able trial judge, we point out that State v. Bennett, supra, was not decided by our Supreme Court until two months after the trial of the instant case. Since judgment in Case No. 71 CrS4792 must be arrested, the remainder of this opinion will deal only with Case No. 71 CrS4793 in which defendant was tried and convicted for illegal transportation of marijuana.

Defendant was tried in October 1971, at which time he was 20 years of age. By Chapter 1231 of the 1971 Session Laws, G.S. § 9--3 was amended effective 21 July 1971 so as to make persons 18 years of age and over eligible to serve as jorors. Prior to that amendment a juror was required to be 21 years of age or older. At the time of defendant's trial, the jury list in Alamance County had not been revised to include the names of any persons under 21 years of age. On this ground defendant attacks the validity of the petit jury which served at his trial. A similar attack was made and rejected by our Supreme Court in State v. Cornell, 281 N.C. 20, 187 S.E.2d 768, decided 12 April 1972. On authority of that case, defendant's assignments of error in which he seeks to question the validity of the petit jury are overruled.

The record reveals that the grand jury in returning the indictment against defendant as a true bill, did so after receiving testimony from only one witness, O. F. Hoggard, a sergeant with the Burlington Police Department. This officer testified at defendant's trial. On cross-examination by defendant's counsel, the officer testified that he had gone before the same grand jury and had induced the return of two sham bills of indictment as true bills. In one of these, 'Vincent A. Barnett,' whose true name was known to the officer to be Isaac M. Clontz, was charged with violating the narcotic drug act, and in the other, another undercover agent was similarly falsely charged. The accused in the first of these bogus bills of indictment was the same undercover agent who was the principal witness against the defendant. This witness, Clontz, also testified on cross-examination that he had had a conference with the solicitor and with Detective Hoggard, and, to 'strengthen' his position as an undercover agent, it had been 'arranged' that the witness would be arrested on a charge of violating the narcotic drug laws and would then be released on bond. Officer Hoggard testified he 'arranged' for the bondsman to sign this bond and that Clontz, alias Vincent A. Barnett, did not pay any bond premium. He also testified he had revealed Clontz's true name and identity to the grand jury at the time he had obtained the false bill of indictment against 'Vincent A. Barnett.'

Defendant contends that the foregoing transactions before the grand jury, which came to light only during the course of cross-examination of the State's witnesses, so tainted the processes of the grand jury that his motion in arrest of judgment should have been allowed. In response, the State's brief contains the following:

'It is apparent from the record that in seeking the fictitious indictments against the two undercover agents, the State was attempting to protect these agents. The State contends that if undercover agents cannot be given this protection, their efforts in the area of drug abuse will be severely hampered.'

Perhaps so, but we would only compound one corruption with another if, in attempting to stamp out drug abuse, we condone practices which can only result in corrupting essential processes of justice. The foreman and members of a grand jury take an oath to 'present all things truly.' G.S. § 11--11. No solicitor or law enforcement officer, whatever his motives, should knowingly induce the grand jury to violate that oath. Such conduct is not condoned.

Nevertheless, while the question raised is a serious one, we have been cited to no authority and our research has disclosed none which holds that the action of a grand jury in knowingly returning a fictitious bill as true against one person, necessarily so taints all processes of that grand jury as to require that other bills returned as true bills charging other defendants with...