State v. Midyette
| Decision Date | 05 February 1980 |
| Docket Number | No. 791SC761,791SC761 |
| Parties | STATE of North Carolina v. John Wright MIDYETTE. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Tiare B. Smiley, Raleigh, for the State.
Robert B. Lowry and Jennette, Morrison & Austin by John S. Morrison, Elizabeth City, for defendant-appellant.
This appeal raises the sole issue of whether a bill of indictment returned without any marking to indicate whether it is a true bill or not a true bill is defective and insufficient when other evidence shows that the bill was returned in open court by the grand jury as a true bill.
Four indictments were returned by the grand jury on 26 March 1979 against defendant for felonious breaking and entering and larceny. Upon trial, guilty verdicts were returned on all four indictments. Three of the four indictment forms had a paragraph just below the list of witnesses and just above the places for the date and signature of the grand jury foreman which read:
The witnesses marked "x" were sworn by the undersigned foreman and examined before the grand jury, and this bill was found to be ( ) a true bill by twelve or more grand jurors ( ) not a true bill.
On two of the forms, no indication was given of whether it was a true bill or not a true bill. On the other identical form indictment, an "x" appears in the box preceding the words "a true bill . . . ." The fourth indictment was similar except the words "Twelve or more Grand Jurors concurred in this finding" were not part of the printed form but were typed in. This fourth form was similar to the other three in the way "a true bill" or "not a true bill" was to be indicated and an "x" did appear in the box preceding the words "a true bill." The superior court minutes for 26 March 1979, the day these four indictments were handed down, disclose that all bills of indictment received that day were acted upon and disposed of and that all bills of indictment received were returned true bills.
Defendant contends that the two indictments which did not have either the box beside "a true bill" or the box beside "not a true bill" marked were defective and insufficient indictments. This is the only objection to the form of the indictment. For the court to have jurisdiction in this case, it is essential that there be a valid indictment or a proper waiver. N.C.Const. Art. 1, § 22; State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975).
The Criminal Procedure Act, G.S. 15A, also makes certain specifications about indictments. The Act requires that there be an indictment unless there is a waiver. G.S. 15A-923(a). As to the form of an indictment, the same statute further states that "(t)he bill of indictment has entered upon it the finding of the grand jury that it is a true bill." G.S. 15A-923(b). The Official Commentary to this section states that this provision must be read in conjunction with the indictment provisions of Article 32 of the Act. In Article 32, an indictment is defined as "a written accusation by a grand jury, filed with a superior court, charging a person with the commission of one or more criminal offenses." G.S. 15A-641(a). The Official Commentary to G.S. 15A-641 states that the section was intended to set out the North Carolina common law relating to the definition of indictment.
An indictment must contain:
(1) The name of the superior court in which it is filed;
(2) The title of the action;
(3) Criminal charges pleaded as provided in Article 49 of this Chapter, Pleading and Joinder;
(4) The signature of the prosecutor, but its omission is not a fatal defect; and
(5) The signature of the foremen or acting foreman of the grand jury attesting the concurrence of 12 or more grand jurors in the finding of a true bill of indictment.
The Supreme Court has held that G.S. 15A-644(a)(5) is merely directory and that an indictment is not invalid because it contained no attestation clause that twelve or more grand jurors concurred in the findings of a true bill. State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978); See also State v. Avant, 202 N.C. 680, 683, 163 S.E. 806, 807 (1932). We follow this reasoning which makes substance paramount over form and hold an indictment is not invalid merely because there is no specific expression in the indictment that it is "a true bill." See also State v. Cox, 280 N.C. 689, 187 S.E.2d 1 (1972); State v. Marr, 26 N.C.App. 286, 215 S.E.2d 866, Cert. den., 288 N.C....
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State v. Hall
...it has been held to be merely directory. See State v. House, 295 N.C. 189, 201, 244 S.E.2d 654, 660 (1978); State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980). Reading the provision as directory "makes substance paramount over form." Midyette, 45 N.C.App. at 89, 262 S.E.2d at 354; see......
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State v. Gary
...will not render an otherwise valid indictment fatally defective. State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932); State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980). With the exception of presiding, these statutory duties appear entirely ministerial. Clearly these duties in no way a......
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State v. Moses
...to the court to render a valid judgment." State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968); see also State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980); State v. Johnson, 77 N.C.App. 583, 335 S.E.2d 770 (1985). A defendant may not be lawfully convicted of an offense which i......
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State v. Parker, COA94-1045
... ... See also State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932) (no error in failure of grand jury foreman to endorse a bill of indictment or to include in the indictment the names of the State's witnesses who were examined before the grand jury); State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980) (signature of grand jury foreman pursuant to statute is merely directory and does not invalidate an indictment). Defendant has shown no prejudice from the lack of a written application or order of the trial court. Accordingly, we conclude that the trial ... ...