State v. Roberts, No. 7225SC581

• Decision Date: 22 November 1972
• Docket Number: No. 7225SC581
• Citation: 192 S.E.2d 649,16 N.C.App. 607
• Parties: STATE of North Carolina v. James Lewis ROBERTS and Thomas Edward Tillman.
• Court: North Carolina Court of Appeals

Page 649

192 S.E.2d 649

16 N.C.App. 607

STATE of North Carolina v. James Lewis ROBERTS and Thomas Edward Tillman.

No. 7225SC581.

Court of Appeals of North Carolina.

Nov. 22, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. R. S. Weathers for the state.

James M. Gaither, Jr., Hickory, for James Lewis Roberts, defendant appellant.

E. Fielding Clark, II, Hickory, for Thomas Edward Tillman, defendant appellant.

MALLARD, Chief Judge.

The defendants' first assignment of error is that the court erred in refusing to grant their motion to quash the indictment on the grounds that they were denied a preliminary hearing after a date had been designated for such hearing.

The purpose of a preliminary hearing is to effect a release for one who is held in violation of his rights. State v. Davis, 253 N.C. 86, 116 S.E.2d 365 (1960), cert. denied, 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819. Inasmuch as the Grand Jury had already returned a true bill of indictment against each defendant on the same charge of armed robbery as contained in the warrants, there was nothing for the district judge to determine on 28 January 1972 at a hearing on the warrants. This court held in the case of State v. Pitts, 10 N.C.App. 355, 178 S.E.2d 632 (1971), cert. denied, 278 N.C. 301, 180 S.E.2d 177, that:

'A preliminary hearing is not an essential prerequisite to the finding of a bill of indictment. State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785 (1968). A defendant who is tried on a bill of indictment, as this defendant was, is not entitled to a preliminary hearing on the bill of indictment as a matter of right. 4 Strong, N.C.Index 2d, Indictment and Warrant, § 1, p. 335. * * *'

See also, Gasque v. State, 271 N.C. 323, 156 S.E.2d 740 (1967), cert. denied, 390 U.S. 1030, 88 S.Ct. 1423, 20 L.Ed.2d 288. The district judge was correct in ruling on the question of bond for the defendants and in declining to conduct a preliminary hearing. The superior court judge did not commit error in denying the motion of the defendants to quash the bill of indictment on the grounds that they had been denied a preliminary hearing.

In their only other assignment of error, the defendants contend that the trial judge did not make it clear to the jury that one of the defendants could be found guilty and the other not guilty. This contention is without merit. When the charge is read and considered as a whole, we think that the judge clearly and properly instructed the jury that under the evidence...