State v. Rhodes
| Decision Date | 11 April 1951 |
| Docket Number | No. 361,361 |
| Citation | 233 N.C. 453,64 S.E.2d 287 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. RHODES. |
Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.
Jones, Reed & Griffin, Kinston, for defendant, appellant.
The State in making out its case relied mainly upon the testimony of officer G. C. Cox. The defendant objected to all incriminating facts given in evidence by this witness on the ground that his knowledge in respect thereto was obtained in the execution of illegal search warrants. The exceptions preserving these objections have been brought forward and form the basis of the defendant's main challenge to the validity of the trial below.
It appears in evidence that officer Clarence Bland obtained a search warrant to search the premises of the defendant Ernest Rhodes, described as including 'his dwelling, garage, filling station, barn and outhouses, and premises, which is located on Deep Run Road and near Jenkinsville, which is located in Neuse Township, Lenoir County, N. C.'
A similar warrant was obtained by officer Cox, naming 'John Doe' as the person whose property was to be searched and describing the same property as it set out in the companion warrant against the defendant.
In the court below, the defendant contended that the testimony of officer Cox was incompetent on the ground that both search warrants were invalid. The court ruled with the defendant as to the John Doe warrant, announcing that 'I will admit any evidence that is competent under the search warrant against Ernest Rhodes, on the premises: the dwelling, garage, filling station, outhouse and premises of Ernest Rhodes, and I will exclude any evidence under the other warrant.' The presiding judge further qualified his ruling by stating: 'I will admit evidence as to all buildings occupied by this defendant, but not as against the buildings occupied by tenants.' The foregoing rulings in effect amounted to a quashal of the John Doe warrant.
The testimony of officer Cox then appears to have been offered by the State and admitted in evidence by the court upon the theory that the search was made by officers Cox and Bland together, acting in concert under the warrant of officer Bland, which was held to be valid. This ruling is sustained by the presumption that the officers acted, not under the invalid warrant, but under the valid writ. Wharton's Criminal Evidence, Vol. 1, p. 177. No error may be predicated upon this ruling in the absence of a showing that the search warrant against the defendant was not issued according to the procedural formalities of G.S. § 15-27, which provides as follows: 'Any officer who shall sign and issue or cause to be signed and issued a search warrant without first requiring the complainant or other person to sign an affidavit under oath and examining said person or complainant in regard thereto shall be guilty of a misdemeanor; and no facts discovered by reason of the issuance of such illegal search...
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...are in all instances legal. State v. Brady, 238 N.C. 407, 78 S.E.2d 129; State v. Gaston, 236 N.C. 499, 73 S.E.2d 311; State v. Rhodes, 233 N.C. 453, 64 S.E.2d 287. This record contains no evidence of an illegal arrest or of an illegal detention. The record does disclose that upon objection......
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