State v. Roux, 73

Citation263 N.C. 149,139 S.E.2d 189
Decision Date16 December 1964
Docket NumberNo. 73,73
PartiesSTATE, v. Emory Joseph ROUX, alias David L. Willard.
CourtUnited States State Supreme Court of North Carolina

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State

Milton C. Williamson, Greenville, for petitioner appellant.

PARKER, Justice.

About May 1963 defendant filed with the superior court of Pitt County a petition seeking a review of the constitutionality of his trial at the October Term 1959 of the superior court of Pitt County, in which trial he was convicted and received substantial prison sentences which he is now serving. G.S. § 15-217 et seq. In his petition he prays that the verdict and judgment be set aside, and that he be awarded a new trial. The solicitor for the State filed an answer to his petition. On 22 May 1963 Judge Hubbard entered an order in which, after reciting that the defendant is an indigent, he appointed Milton C. Williamson of the Pitt County Bar as counsel to represent defendant at the post conviction hearing. G.S. § 15-219.

At the June 1963 Session of the superior court of Pitt County Judge Hubbard held a post conviction hearing as requested by defendant. He entered a final judgment, in which he made the following findings of fact, which we summarize:

In Case No. 7217 defendant was charged in an indictment with the larceny on 25 October 1958 of personal property of the value of $28,000 owned by George Lautares, John Lautares and Pearl Lautares. In Case No. 7218 defendant was charged in an indictment on the same day with breaking and entering a building occupied by George Lautares, John Lautares, and Pearl Lautares, with intent to commit larceny, and with attempting to open a vault, safe, and other secure places therein by the use of nitroglycerine, dynamite, gunpowder, and other explosives, and by an acetylene torch, in violation of G.S. § 14-57.

These two cases were consolidated by consent and tried together at the October 1959 Term of Pitt County superior court. Defendant was represented by Frazier Woolard, a member of the Beaufort County Bar. Defendant pleaded not guilty and was convicted as charged in both indictments by the jury. In Case No. 7217 he was sentenced to imprisonment for a term of 10 years. In Case No. 7218 he was sentenced to imprisonment for a term of not less than 20 nor more than 25 years. He is now serving these sentences.

Defendant in open court gave notice of appeal to the Supreme Court. The usual appeal entries were made, and he was allowed 45 days in which to state and serve his case on appeal.

After notice of appeal was given, the Criminal Minute Docket Book 29, page 619, shows that defendant's counsel Woolard asked permission of the court to withdraw as counsel, assigning as the reason therefor that he had not been paid by defendant for his services. The court directed that defendant's counsel's request be discussed further by defendant and his counsel. The record is silent as to what transpired.

After giving notice of appeal defendant in open court asked the court reporter for an interview. The same day the reporter went to the jail and talked with the defendant. Defendant asked the reporter for a transcript of the evidence and record in his trial, and offered to give the reporter a wrist watch of the retail cost value when new of $350 in payment therefor. The court reporter refused to accept the watch in payment for a transcript, and a transcript was not furnished by him to defendant. Defendant made no further effort to obtain the transcript, nor did his attorney of record.

At the November 1959 Term of the superior court of Pitt County defendant in open court announced that his former counsel Woolard had withdrawn as his counsel, and that he desired to abandon and withdraw his appeal to the Supreme Court. Defendant signed a statement withdrawing his appeal, and, thereupon, an order was entered by the presiding judge dismissing the appeal and directing that commitment issue. Nothing further was done with respect to the appeal.

Defendant testified at the post conviction hearing that he requested Judge Bundy presiding at the November Term 1959 to appoint counsel to prosecute his appeal. The record is silent as to this. The court is unwilling to accept the uncorroborated testimony of the defendant that such request was made, and, therefore, in view of the silence of the record in this respect, finds that no such request was made.

The record does not reveal the financial condition of defendant at the time of his trial. Defendant testified at the post conviction hearing that he had money and personal property and an equity in real estate located in Nevada of a value in excess of $15,000 at the time of his arrest, about one year prior to his trial, that during the interval between his arrest and trial his equity in the real estate was wiped out by foreclosure, that the money, cashier's cheque, and money orders in his possession when he was arrested were seized by the law enforcement officers, and his automobile was repossessed by the financing agency. He further testified that he had a wrist watch of a retail value of $350 when new, and personal clothes of a market value of $200. Nothing in the record, except the statement that his counsel has not been paid, throws any light on defendant's financial condition, but in view of the defendant's effort to give the wrist watch for a copy of the transcript the court finds the defendant at the time of his trial was indigent and had no funds or property to pay for a transcript of the record of his trial and to employ counsel.

Defendant testified, and the court finds as a fact, that at the time the defendant withdrew his appeal, he did so willingly and voluntarily, without duress or compulsion of any kind, and no promise of leniency was made to him. Although defendant testified that he had only an eighth grade education, he is a highly intelligent individual, and knew and understood he was abandoning and withdrawing his appeal. He knowingly and deliberately adopted a course of procedure which at that time appeared to him to be for his best interest. This finding is made despite the testimony of the defendant at the post conviction hearing that he abandoned his appeal because of his inability to obtain a transcript of the evidence at his trial. In this connection the court takes into consideration the evidence induced at this hearing that within less than one year after withdrawal of the appeal the defendant filed with the Supreme Court a petition for a writ or writs of certiorari in a civil action growing out of the seizure of his moneys and property by law enforcement officers.

At the May Session 1963 of Pitt County superior court defendant filed an application for a post conviction hearing. Thereupon, Milton C. Williamson of the Pitt County Bar was appointed counsel for him and filed a subsequent petition for a post conviction hearing. The post conviction hearing was held on the petition drafted by defendant's counsel Williamson. The defendant is now indigent and unable to pay counsel or pay the cost of this proceeding.

During the post conviction hearing counsel for defendant stipulated that the only bases for granting the application were as follows: '(1) denial of the petitioner's constitutional rights by failure of the Court to furnish him with a transcript of the evidence and record of his trial; and (2) failure of the Court to appoint counsel for the prisoner to enable him to prosecute his appeal to the Supreme Court.'

Based upon his findings of fact, Judge Hubbard made the following conclusions of law, which we summarize:

(1) Defendant was entitled to have the court furnish him a transcript of the evidence and record of his trial in order that he might prosecute his appeal.

(2) At the November 1959 Term of the superior court of Pitt County defendant withdrew his appeal, and thereby waived his constitutional rights to have a transcript of his trial furnished him.

(3) Defendant is now legally confined, pursuant to judgment of the superior court of Pitt County, and the commitment issued thereon.

Whereupon, based on his findings of fact and conclusions of law, Judge Hubbard ordered and decreed that defendant's petition be denied and that he be returned to the custody of the State Prison Department.

At the September 1964 Civil Session of Pitt County superior court Judge Morris entered an order directing Pitt County to pay the costs of preparing necessary copies of the case on appeal and the defendant's brief in the Supreme Court.

On 1 September 1964 we issued a writ of certiorari to review the final judgment entered by Judge Hubbard in the post conviction hearing. G.S. § 15-222. A writ of certiorari is an extraordinary remedial writ, and 'it issues from a superior to an inferior court, officer or commission acting judicially, and it lies only to review judicial or quasi-judicial action' to ascertain its validity and to correct errors therein. Pue v. Hood, Comr. of Banks, 222 N.C. 310, 22 S.E.2d 896; Wilson Realty Co. v. Planning Board, 243 N.C. 648, 92 S.E.2d 82.

In North Carolina G.S. § 15-180 provides that '[i]n all cases of conviction in the superior court for any criminal offense, the defendant shall have the right to appeal' to the Supreme Court. This statute further provides that criminal appeals are to be perfected and the cases for the Supreme Court settled, 'as provided in civil actions.' It is the duty of the appellant to see that the record is properly made up and transmitted. State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819.

Judge Hubbard found as a fact that petitioner was an indigent at the time of his trial, conviction and sentence at the October 1959 Term of Pitt County superior court, and that he is now an indigent. He contends first that the failure of the superior court of Pitt County to furnish him, an indigent, with a copy of the transcript of his trial, and the failure of the same court to...

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  • State v. Fowler
    • United States
    • North Carolina Supreme Court
    • April 10, 1974
    ...transcript of the record in the case on appeal in a criminal case. State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Roux, 263 N.C. 149, 139 S.E.2d 189 (1964); G.S. § 15--180; G.S. § 1--282. It is also the duty of the solicitor to scrutinize the copy that the appellant serves upon h......
  • State v. White, 86
    • United States
    • North Carolina Supreme Court
    • August 23, 1968
    ...to apply to this Court for certiorari. We granted the petition, and--upon appeal--ordered a new trial. Similarly, in State v. Roux, 263 N.C. 149, 139 S.E.2d 189, counsel for petitioner in post-conviction proceedings was directed to apply to this Court for certiorari to review the petitioner......
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