State v. Peele, 7212SC697
| Decision Date | 25 October 1972 |
| Docket Number | No. 7212SC697,7212SC697 |
| Citation | 16 N.C.App. 227,192 S.E.2d 67 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Frank PEELE. |
Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood, for the State.
Asst. Public Defender Neill Fleishman, for defendant appellant.
Appellant first assigns error to denial of his motion to quash the larceny count in the indictment. In support of this assignment he contends that, absent his consent, the trial court had no power to make any change in the bill or indictment as returned by the grand jury, that the larceny count in the bill of indictment in the form in which it had been returned a true bill by the grand jury charged him with larceny of certain particularly described items of property of Joel Noah as well as with larceny of property of Peter Hall, and that, having already been acquitted in the district court of the charge of larceny of the identical property of Joel Noah, his motion to quash the entire larceny count should have been granted.
At the outset, we observe that when facts constituting double jeopardy do not appear from the allegations of the bill of indictment itself, the defense of former jeopardy may not be taken advantage of by motion to quash. State v. Cooke, 248 N.C. 485, 103 S.E.2d 846. However, since the record in the present case is not entirely clear as to what type of motions appellant made before the trial judge and '(s)ince the law looks at substance rather than form,' State v. Wilson, 234 N.C. 552, 67 S.E.2d 748, we shall consider appellant's contentions in connection with his first assignment of error as though these were properly presented on the record before us.
At common law the courts had no power to amend matters of substance in a bill of indictment, and in this State there is no statute allowing amendments to bills of indictment. State v. Haigler, 14 N.C.App. 501, 188 S.E.2d 586. Therefore, '(a)n indictment duly returned upon oath cannot usually be amended by the court without the concurrence of the grand jury by whom it was found or the consent of the defendant.' State v. Dowd, 201 N.C. 714, 161 S.e. 205. In the present case the only 'amendment' to the indictment made by the trial judge was to strike from the larceny count words which might well be considered mere surplusage. The deletion in no way changed the nature or the degree of the offense charged and we perceive no reason why defendant was not as fully apprised of the charge against him after the deletion as before. Courts of some jurisdictions have expressly approved amendments eliminating a portion of the property described in the indictment, Annot., 15 A.L.R.3d 1357, § 4, and it may well be that even absent a statute authorizing amendments such a deletion could properly be approved. That question, however, need not be decided on the present appeal. Here, there was no defect in the first count in the bill of indictment and only one sentence was imposed on the jury's verdict finding defendant guilty of the charges contained in both the first and second counts. Since the sentence was fully warranted by the conviction under the first count alone, error, if any, relating solely to the second count is of no avail to defendant. State v. Jackson, 280 N.C. 563, 187 S.E.2d 27; 41 Am.Jur.2d, Indictments and Informations, § 309, [16 N.C.App. 234] p. 1071. Appellant's first assignment of error is accordingly overruled.
The next assignment of error brought forward in appellant's brief is that the trial court erred in allowing the State to introduce evidence concerning the items of property found in defendant's attic as result of the second search of his premises, which was made without a search warrant and at a time when he was not personally present and consenting to the search. This assignment is without merit. The...
To continue reading
Request your trial
-
State v. Sanders, 88A85
...property by searching a defendant's premises, the search may be deemed a private act not attributable to the police. State v. Peele, 16 N.C.App. 227, 192 S.E.2d 67 (1972), cert. denied 282 N.C. 429, 192 S.E.2d 838 Several courts, after examining police encouragement of a private citizen, ha......
-
State v. Lawson
...which "in no way change[s] the nature or the degree of the offense charged" may be stricken from an indictment. State v. Peele , 16 N.C. App. 227, 233, 192 S.E.2d 67, 71, cert. denied , 282 N.C. 429, 192 S.E.2d 838 (1972). ¶ 21 In the case at bar, Defendant was indicted for felony animal cr......
-
State v. Keadle
...(1979); State v. Reagan, 35 N.C.App. 140, 240 S.E.2d 805 (1978); State v. Carr, 20 N.C.App. 619, 202 S.E.2d 289 (1974); State v. Peele, 16 N.C.App. 227, 192 S.E.2d 67, cert. denied, 282 N.C. 429, 192 S.E.2d 838 (1972). See Annot. 36 A.L.R.3d 553 In Coolidge v. New Hampshire, 403 U.S. 443, 2......
-
State v. Jones
...bill. We feel that this statutory reference amounts to surplusage on the bill of indictment, not a material change. In State v. Peele, 16 N.C.App. 227, 192 S.E.2d 67, cert. denied, 282 N.C. 429, 192 S.E.2d 838 (1972), this Court held that even striking words from the body of an indictment d......