State v. McMilliam, 290

• Decision Date: 18 April 1956
• Docket Number: No. 290,290
• Court: North Carolina Supreme Court
• Parties: STATE, v. James McMILLIAM (McMiller).

Page 205

92 S.E.2d 205

243 N.C. 775

STATE, v. James McMILLIAM (McMiller).

No. 290

Supreme Court of North Carolina.

April 18, 1956

C. W. Beaman, Snow Hill, for defendantappellant.

William B. Rodman, Jr., Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

PARKER, Justice.

Although the defendant was convicted of two misdemeanors for which on each count the punishment could not exceed two years, the Recorder's Court had authority to suspend the judgment on the first count for five years. G.S. § 15-200; State v. Wilson, 216 N.C. 130, 4 S.E.2d 440; State v. Gibson, 233 N.C. 691, 698, 65 S.E.2d 508; State v. McBride, 240 N.C. 619, 83 S.E.2d 488.

Ordinarily, a court, in deciding one case, will not take judicial notice of what may appear from its own records in another and distinct case, unless made part of the case under consideration, even though between the same parties or privies and in relation to the same subject matter. Com. ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191, 29 A.L.R. 626; James v. Unknown Trustees, etc., 203 Okl. 312, 220 P.2d 831, 20 A.L.R.2d 1077; Murphy v. Citizens' Bank, 82 Ark. 131, 100 S.W. 894, 11 L.R.A., N.S., 616, 12 Ann.Cas. 535; 20 Am.Jur., Evidence, sec. 87; 31 C.J.S., Evidence, § 50(c).

It was held in Daniel v. Bellamy, 91 N.C. 78, that in a proceeding against executors for an account that a Probate Court could not take judicial notice of the fact that the probate of the will naming defendants as executors had been revoked in another proceeding in the same court.

This is far from saying that an appellate court may not take judicial notice of, and give effect to its own records in another, but interrelated, proceeding, particularly where the issues and parties are the same, or practically the same, and the interrelated case is specifically referred to in the case on appeal in the case under consideration. U. S. v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552, 86 L.Ed. 796, 810; Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110; Bienville Water Supply Co. v. City of Mobile, 186 U.S. 212, 22 S.Ct. 820, 46 L.Ed. 1132; Freshman v. Atkins, 269 U.S. 121, 124, 46 S.Ct. 41, 70 L.Ed. 193, 195; West v. L. Bromm Baking Co., 166 Va. 530 186 S.E. 291; 31 C.J.S., Evidence, § 50, pp. 625-626.

The case on appeal specifically states that Judge Fountain's judgment was based upon the evidence in the case of State v. James McMilliam and Bettie Lee McMilliam, 'the companion case to this one.' The case of State v. James and Bettie Lee McMilliam was argued before us the same day as the instant case by the same counsel, and is before us for decision. The evidence in this case, according to the case on appeal, was omitted to avoid repetition, and no doubt to save costs for the appellants. The evidence in State v. James and Bettie Lee McMilliaM is before us in that case, and it seems clear that it was the plain intent of the counsel for the defense and the trial solicitor to make the evidence in that case a part of this case. We know of no reason why we should not take judicial notice of, and consider in the instant case the evidence in the interrelated case.

The evidence in the case of State v. James and Bettie Lee McMilliam shows the following. Upon the calling of the case for trial, and before pleading to the indictment, the defendants made a motion to suppress the State's evidence, for the reason that the State's evidence was procured by an unlawful search warrant, or secured without a search warrant, and was, therefore, incompetent as evidence. The court stated that it would reserve its ruling upon the motion, until after the State rested its case. Whereupon, the defendants entered pleas of Not Guilty.

After the jury was impanelled the State, without producing in court a valid warrant to search the home and premises of James and Bettie Lee McMilliam, offered evidence as to what was found by the...