State v. McCotter

• Decision Date: 04 December 1974
• Docket Number: No. 743SC657,743SC657
• Citation: 24 N.C.App. 76,210 S.E.2d 91
• Parties: STATE of North Carolina v. Samuel McCOTTER.
• Court: North Carolina Court of Appeals

Page 91

210 S.E.2d 91

24 N.C.App. 76

STATE of North Carolina v. Samuel McCOTTER.

No. 743SC657.

Court of Appeals of North Carolina.

Dec. 4, 1974.

Atty. Gen. James H. Carson, Jr. by Deputy Atty. Gen. Bruce White and Asst. Atty. Gen. Zoro J. Guice, Jr., Raleigh, for the State.

Michael P. Flanagan, New Bern, for defendant appellant.

MORRIS, Judge.

Defendant's first assignment of error presents the question of whether a defendant who was never arraigned and entered no plea at trial is entitled to a new trial. Defendant relies on State v. Lueders, 214 N.C. 558, 200 S.E. 22 (1938), where a unanimous Court, speaking through Chief Justice Stacy, said:

'. . . In the absence of a plea to the indictment or charge, there was nothing for the jury to determine. See State v. Camby, 209 N.C. 50, 182 S.E. 715.

Speaking to a similar situation in State v. Cunningham, 94 N.C. 824, Ashe, J., delivering the opinion of the Court, said: 'There is manifest error in the judgment of the Superior Court. First, for the reason that there was no plea filed by the defendant, and therefore no issue to be submitted to the jury, and consequently the verdict returned by them was a nullity; and it must follow, as a necessary consequence, that no judgment could be pronounced upon such a verdict.' See State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Walters, 208 N.C. 391, 180 S.E. 664; State v. Stewart, 89 N.C. 563.'

An analysis of the cases to which the court refers reveals that the Stewart and Walters cases involved a situation where the defendant, upon a plea of not guilty, waived a trial by jury and was tried by the court, in one instance upon an agreed statement of facts. This, the Court said, constituted error. In Beal the defendants entered pleas of not guilty to the principal bill of indictment charging murder. Counts were added to the bill, without objection from defendant, all of which related to the same transaction. Defendants did not plead to the added counts, and the Court refused to find error. In the Lueders case, it does not appear that any circumstances were present except a failure to arraign and the absence of a plea.

We are aware of Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914). There defendant was charged with larceny of 'one thousand dollars ($1,000) in lawful money of the United States'. Upon that information he was arraigned, entered a plea of not guilty, was tried and convicted. Thereafter, he was awarded a new trial, and a new information filed, making the same charges. To that information defendant directed certain motions, all of which were denied. No arraignment was had or plea entered on that information. After the jury was impanelled, defendant objected to the introduction of evidence on the general ground that the State had no right to try defendant on that information. The objection was overruled, the trial proceeded, and the jury convicted defendant. He appealed. The Supreme Court of Washington held that he was not entitled to a new trial for failure to have arraignment and plea. Upon appeal, the Supreme Court of United States affirmed, saying:

'Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution.'

The Court noted that in affirming the Supreme Court of Washington it was overruling its own holding in Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097, that in a federal court no valid trial could be had without the requisite arraignment and plea, and approving a number of earlier cases in the state courts which had held that such form of arraignment entered of record was essential to a valid trial. The Garland Court adopted the view of the minority in Crain which had said:

'. . . A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.' Garland v. Washington, supra, 232 U.S. at 646, 34 S.Ct. at 457, 58 L.Ed. at 775.

Thus it appears that in Crain, the defendant had entered a plea of...