State v. McBane, 23
| Citation | 276 N.C. 60,170 S.E.2d 913 |
| Decision Date | 10 December 1969 |
| Docket Number | No. 23,23 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE of North Carolina v. J. N. McBANE. |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard Rich, Jr., for the State.
Turner, Rollins, Rollins & Suggs, Greensboro, for defendant appellee.
This appeal by the State is specifically authorized by G.S. § 15--179(3) and (6). State v. Vaughan, 268 N.C. 105, 150 S.E.2d 31.
The provisions of Chapter 1007, Session Laws of 1959, captioned 'AN ACT AUTHORIZING COUNTIES TO REGULATE THE SUBDIVISION OF LAND IN AREAS OUTSIDE MUNICIPAL SUBDIVISION-REGULATION JURISDICTION,' now comprise Article 20A, Chapter 153, of the General Statutes (Vol. 3C, Replacement 1964). Article 20A consists of G.S. § 153--266.1 through G.S. § 153--266.9.
The warrant purports to charge a violation of G.S. § 153--266.6, which provides:
G.S. § 153--266.6 purports to create and define a misdemeanor '(i)f a board of county commissioners adopts an ordinance regulating the subdivision of land' as authorized by the provisions of Article 20A, Chapter 153. Hence, as one of the prerequisites to conviction for violation of G.S. § 153--266.6, it must be alleged and established that an ordinance regulating the subdivision of land was adopted by the board of county commissioners in accordance with the authority conferred by G.S. § 153--266.1 Et seq.
Stipulations appearing in the record set forth that the Board of County Commissioners of Guilford County adopted 'an Ordinance regulating the subdivision of land as authorized in Article 20A, Chapter 153, of the General Statutes,' and that this ordinance had been 'in full force and effect since May 17, 1965.' The only provision of the ordinance referred to in the stipulations is Section 23 which simply repeats certain provisions of G.S. § 153--266.6.
When a warrant or indictment is challenged by a timely motion to quash on the ground it fails to charge a criminal offense, decision must be based solely on the contents of such warrant or indictment. State v. Guffey, 265 N.C. 331, 333, 144 S.E.2d 14, 16.
For present purposes, we assume, but do not decide, that a Guilford County Subdivision Ordinance was duly adopted and properly pleaded. Whether it was authorized, in whole or in part, by G.S. § 153--266.1 Et seq. is not presented. Its provisions do not appear in the record before us.
G.S. § 153--266.1 confers upon a board of county commissioners authority to adopt a subdivision control ordinance. However, this authority may be lawfully exercised only within prescribed limitations. Thus, a subdivision ordinance adopted by the board of county commissioners applies solely to land lying within the county and outside the subdivision-regulation jurisdiction of any municipality. A municipality, under G.S. § 160--226, may enact a subdivision ordinance applicable to land lying within the muncipality or within one mile in all directions of its corporate limits. However, a municipality May, by resolution, agree to be governed by a county ordinance. A board of county commissioners, if it determines, pursuant to G.S. § 153--266.13, that only certain areas of the county need to be governed by zoning regulations, May in its discretion elect to adopt subdivision regulations which apply only to such areas.
The sufficiency of the warrant on which this criminal prosecution is based must be tested in the light of well-established legal principles stated below.
'A valid warrant or indictment is an essential of jurisdiction.' State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Thornton, 251 N.C. 658, 660, 111 S.E.2d 901, 902. The warrant or indictment must charge all the essential elements of the alleged criminal offense. State v. Morgan, supra. Nothing in G.S. § 15--153 or in G.S. § 15--155 dispenses with the requirement that the essential elements of the offense must be charged. State v. Gibbs, 234 N.C. 259, 261, 66 S.E.2d 883, 885, and cases cited; State v. Strickland, 243 N.C. 100, 101, 89 S.E.2d 781, 783.
A warrant or indictment following substantially the language of the statute is sufficient if and when it thereby charges the essentials of the offense 'in a plain, intelligible, and explicit manner.' G.S. § 15--153; State v. Eason, 242 N.C. 59, 86 S.E.2d 774. If the statutory words fail to do this they 'must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged.' State v. Cox, 244 N.C. 57, 60, 92 S.E.2d 413, 415, and cases cited.
A warrant or indictment '(m)erely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient.' State v. Ballangee, 191 N.C. 700, 702, 132 S.E. 795, and cases cited. Subsequent cases in accord with the foregoing include State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638, and State v. Cook, 272 N.C. 728, 158 S.E.2d 820.
The general allegation that defendant's conduct constituted a misdemeanor in violation of G.S. § 153--266.6 is insufficient. The owner or agent of the owner of land within the 'platting jurisdiction' granted the county commissioners by G.S. § 153--266.1 is the only person subject to criminal prosecution for violation of G.S. § 153--266.6. The warrant alleges that the defendant unlawfully and wilfully transferred or sold 'certain property' described in Deed Book 2331, at page 32, of the Guilford County Registry. Assuming the allegations sufficiently imply that defendant was the owner or agent of the owner of the 'certain property' described in Deed Book 2331, page 32, there is no allegation that this property is located within the 'platting jurisdiction' granted to the county commissioners by G.S. § 153--266.1 or that it is located in a portion of Guilford County 'outside the subdivision-regulation jurisdiction of any municipality.' In short, the warrant is fatally defective on account of its failure to allege one of the essential elements of the criminal offense created and defined in G.S. § 153--266.6, namely, that defendant was the owner or agent of the owner of land within the platting jurisdiction granted to the county commissioners by G.S. § 153--266.1. Cf. State v. Furio, 267 N.C. 353, 148 S.E.2d 275.
While we base decision on the insufficiency of the warrant, it seems appropriate to call attention to the matters discussed below.
The general purposes of an authorized county subdivision ordinance are stated in G.S. § 153--266.3. Procedural requirements as to notice and hearing prior to the adoption thereof are set forth in G.S. § 153--266.2. G.S. § 153--266.7 defines 'Subdivision,' describing certain divisions as included in and other divisions as excluded from the definition. G.S. § 153--266.4 requires that the ordinance contain a provision giving certain specified agencies an opportunity to make recommendations prior to the approval of any individual subdivision plat; and the ordinance may provide that final approval is to be given (1) by the board of county commissioners, or (2) by the board of county commissioners on recommendation of the county planning board, or (3) by the county planning...
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...State v. Langley , ––– N.C. ––––, ––––, 817 S.E.2d 191, 195 (2018) (relying on the common law rule articulated in State v. McBane , 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969) ); State v. McGaha , 306 N.C. 699, 702-03, 295 S.E.2d 449, 451 (1982) (relying on the common law rule articulated i......
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...only the record proper and the provisions of the statute or ordinance. State v. Lee, 277 N.C. 242, 176 S.E.2d 772; State v. McBane, 276 N.C. 60, 170 S.E.2d 913; State v. Cooke, 248 N.C. 485, 103 S.E.2d 846; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745. . . Defendant does not question the v......
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State v. Williams, 4
...(1973); State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); accord, Wolfe v. North Carolina, 364 U.S. 177, 80 S.Ct. 1482, 4 L.Ed.2d 1650 (1960). Such is not the case here. The indict......
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...the statute does not dispense with the requirement that the essential elements of the offense must be charged. State v. McBane, 276 N.C. 60, 170 S.E.2d 913. Defendant relies on this passage from State v. Greer, 'The general rule in this State and elsewhere is that an indictment for a statut......