State v. Mitchell

Citation260 N.C. 235,132 S.E.2d 481
Decision Date25 September 1963
Docket NumberNo. 145,145
PartiesSTATE of North Carolina v. George MITCHELL.
CourtUnited States State Supreme Court of North Carolina

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock, for the State.

Donald P. Brock, Trenton, for defendant-appellant.

PARKER, Justice.

The State's evidence shows these facts: About 2:00 a. m. on 21 July 1962 B. O. Mercer, a State highway patrolman, saw a Ford automobile traveling south on Highway 17 turn on Highway 58, and proceed toward Trenton ahead of him. This automobile continually increased its speed until it reached 90 miles an hour near Oliver's Crossroads, when it slowed down and headed into a driveway. Mercer pulled immediately to the side of this automobile with his headlights shining in the automobile. A Negro was sitting in it. When Mercer got out of his patrol car and was standing by the door, the defendant George Mitchell got out of the left side of the Ford automobile. Mercer's headlights were shining on him. The defendant started toward Mercer, and then turned and ran around a house. Mercer saw through the back window of the Ford automobile jars of a clear liquid. The Ford automobile was searched by Mercer and the sheriff, and they found in it 30 gallons of whisky in jugs and jars. No tax stamps were on any of the jugs and jars containing the 30 gallons of whisky. Mercer did not see the defendant again until his lawyer about a month later brought him into the sheriff's office, when the defendant gave bond. Mercer had a warrant issued against defendant on 8 or 9 August 1962.

Defendant offered no evidence.

There is no merit to defendant's assignment of error that the court erred in denying his motion for judgment of nonsuit. The State's evidence was amply sufficient to carry the case to the jury on all three counts in the indictment. G.S. § 18-48; G.S. § 18-50; G.S. § 18-2; State v. Hill, 236 N.C. 704, 73 S.E.2d 894; State v. Guffey, 252 N.C. 60, 112 S.E.2d 734.

Defendant assigns as error that the 'indictment on which the defendant was tried shows on its face that no witnesses were examined and therefore no basis for finding a true bill.' This assignment of error is supported by his Exception #2, which appears below the copy of the indictment in the record without any indication of what he is excepting to, except as stated in his assignment of error. The indictment, as it appears in the record, shows no mark beside the names of the witnesses written on the back of the indictment.

Defendant entered a plea of not guilty. He neither made a motion to quash the indictment nor that judgment on the conviction be arrested on the ground that the indictment was fatally defective for that it did not appear by an endorsement of the foreman of the grand jury that any person whose name appeared on the back of the indictment had been sworn and had testified before the grand jury. No evidence was offered by defendant that no witnesses were examined by the grand jury before it returned the indictment 'a true bill.' State v. Sultan, 142 N.C. 569, 54 S.E. 841; State v. Davis, 203 N.C. 47, 164 S.E. 732.

The provisions of G.S. § 9-27 with respect to the foreman of the grand jury are directory and not mandatory. State v. Avant, 202 N.C. 680, 163 S.E. 806. The mere absence of such an endorsement is not sufficient to overcome the presumption of the validity of the indictment arising from its return by the grand jury as 'a true bill.' State v. Lancaster, 210 N.C. 584, 187 S.E. 802; State v. Lanier, 90 N.C. 714. If this omission had been brought to the attention of the trial judge in apt time, it would doubtless have resulted in a correction of the omission, as was done in State v. Avant, supra, and State v. Davis, supra. This assignment of error is overruled.

Defendant assigns as error this part of the charge: 'He [the defendant] doesn't challenge the question of whether or not it is tax-paid whiskey or non-tax-paid. He doesn't challenge the question of who had it for what purpose. He simply...

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15 cases
  • State v. House, 12
    • United States
    • North Carolina Supreme Court
    • 6 juin 1978
    ...to permit this to be done while the grand jury was still present in the courtroom and this was permitted. However, in State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963), speaking through Justice Parker, later Chief Justice, this Court held that the above quoted provision of the old G.S.......
  • State v. Brower
    • United States
    • North Carolina Supreme Court
    • 14 mai 1976
    ...what the State's evidence tended to show, rather than expressing opinions that certain facts had been established. State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963), relied on by defendant, is factually distinguishable. Viewing the charge as a whole, it contains no expression of opinio......
  • Applewhite v. State
    • United States
    • Tennessee Court of Criminal Appeals
    • 27 septembre 1979
    ...287 N.E.2d 211 (1972); State v. Fisher, 172 Iowa 462, 154 N.W. 587 (1915); Prior v. State, 265 A.2d 486 (Me.1970); State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963); State v. Lombardo, 20 N.J.Super. 317, 90 A.2d 39 (1952), it appears under long-standing Tennessee law that the endorseme......
  • State v. Snipes
    • United States
    • North Carolina Court of Appeals
    • 2 décembre 2014
    ...the jury charge, not during jury selection. See, e .g., State v. Mason,268 N.C. 423, 425, 150 S.E.2d 753, 755 (1966) ; State v. Mitchell,260 N.C. 235, 238–39, 132 S.E.2d 481, 483 (1963) ; State v. Covington,48 N.C.App. 209, 211–12, 268 S.E.2d 231, 233 (1980). The cases cited in Defendant's ......
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