State v. Sparrow, 6926SC504
| Decision Date | 31 December 1969 |
| Docket Number | No. 6926SC504,6926SC504 |
| Citation | 171 S.E.2d 321,7 N.C.App. 107 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Marvin Ray SPARROW, Katherine Taft Sparrow and Britton Oxidine, Jr. |
Robert Morgan, Atty. Gen., and Burley B. Mitchell, Jr., Staff Attorney, for the State.
George S. Daly, Jr., Casey & Daly, Adam Stein, Chambers, Stein, Ferguson & Lanning, Charlotte, and Thomas Allman, Cincinnati, Ohio, for the defendants appellants.
The appellants' first assignment of error is based on their exceptions to the fact that the judgment imposed in each case by the Judge in the Superior Court was more severe than that imposed in the District Court. The appellants contend that the imposition of greater sentences denied them due process of law and violated rights secured them by the Sixth Amendment to the U.S. Constitution. We do not agree. Article I, Sec. 13, of the North Carolina Constitution provides:
In State v. Sherron, 4 N.C.App. 386, 166 S.E.2d 836 (1969), where the identical question was raised, Parker, J., speaking for the Court, said:
On appeal from district court to superior court trial is de novo. State v. Overby, 4 N.C.App. 280, 166 S.E.2d 461 (1969); State v. Meadows, 234 N.C. 657, 68 S.E.2d 406 (1951). We do not agree with the appellants' contention that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), is authority for holding that in cases involving petty misdemeanors which are appealed from the district court to the superior court where trial de novo is had, the superior court judge cannot impose a more severe sentence than did the district court judge. See Michigan v. Olary, 382 Mich. 559, 170 N.W.2d 842 (1969).
The appellants by assignment of error No. 2 contend that the statutes, G.S. § 110--21 and G.S. § 110--39, under which they were charged, are unconstitutional for vagueness. The North Carolina Supreme Court was faced with an issue identical to the one raised in the instant case in In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969). In answer to the question raised, the Court, speaking through Huskins, J., said, at page 531, 169 S.E.2d at page 888:
'Appellants argue that the statute fails to define any of the operative terms such as 'delinquent', 'unruly', 'wayward', 'misdirected' and 'disobedient' and contend that the statute is therefore void for vagueness and uncertainty.
Our courts have construed these juvenile statutes and have consistently upheld their constitutionality. State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920); State v. Coble, 181 N.C. 554, 107 S.E. 132 (1921); In re Hamilton, 182 N.C. 44, 108 S.E. 385 (1921); In re Coston, 187 N.C. 509, 122 S.E. 183 (1924); Winner v. Brice, 212 N.C. 294, 193 S.E. 400 (1937); In re Burrus, 4 N.C.App. 523, 167 S.E.2d 454; modified and affirmed, Supra. Statutes similar to the N.C. Juvenile Courts Act have been held constitutional in over forty states against numerous attacks. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); See Paulson, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Supreme Court Review 167, 174.
By assignment of error No. 3, the defendants challenge the sufficiency of the warrants which charge each of the defendants with contributing to the delinquency of a minor. The assignment of error is based on the defendants' exception to the court's refusal to grant their motion for a bill of particulars. This exception does not support the assignment of error, nevertheless, we must consider the sufficiency of the warrant to support the judgment entered on the verdict as to the defendant Britton Oxidine. We believe that the warrant is sufficient to charge the defendants with a violation of G.S. § 110--39. The warrant is couched in the language of the statute and the statute is cited. It is true that the words 'harboring and providing lodging' standing alone would be insufficient, but the warrant must be read in its entirety. We believe the allegation that the defendants 'did unlawfully, wilfully, contribute to the delinquency of Karen Torpey, white female, age 14, in violation of G.S. § 110--39 of North Carolina by harboring and providing lodging for Karen Torpey and wilfully concealing said minor from officers knowing they had petitions for said Karen Torpey for delinquency, runaway and truancy' was sufficient to charge the offense. To wilfully conceal a minor from officers knowing that they had a petition for her arrest for runaway and truancy is an act calculated to contribute to the minor's delinquency. The allegation is sufficient to identify the offense with which the defendant is charged, to protect the defendant from being put in jeopardy twice for the same offense, to enable the accused to prepare for trial, and to allow the court, on conviction, plea of nolo contendere or guilty, to pronounce sentence. State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953).
This assignment of error is overruled.
The appellants fourth assignment of error was that the trial court erred in denying their motion to sequester the State's witnesses. In North Carolina, the sequestration of witnesses during a trial rests solely in the discretion of the trial judge, and the exercise of his discretion is not reviewable on appeal except where there has been an abuse of discretion. State v. Clayton, 272 N.C. 377, 158 S.E.2d 557 (1968); State v. Spencer, 239 N.C. 604, 80 S.E.2d 670 (1954); State v. Lovedahl, 2 N.C.App. 513, 163 S.E.2d 413 (1968). A thorough examination of the record on appeal discloses that defendants were given ample opportunity to cross-examine the witnesses for the State and that they did, in fact, exercise their right to cross-examine. We find no abuse by the trial judge in the exercise of his discretion.
The appellants' fifth assignment of error is as follows: 'The evidence in this case was obtained as the result of an illegal entry of a private dwelling and should have been excluded.' By this assignment of error the appellants apparently attempt to raise the question of the legality of the entry by the officers into the Sparrow house; however, of the fifteen exceptions upon which the assignment of error is based, only three seem to relate to evidence obtained as a result of the entry. The fifteen exceptions grouped under this assignment of error raise questions of law not embraced in the assignment; nevertheless, since the entry into the Sparrow house by the officers for the purpose of serving the petition upon the juvenile, Karen Torpey, resulted in the charges of interfering with an officer against Marvin and Kathy Sparrow, we have considered the question of whether the entry into the Sparrow house by the officers was lawful, and whether any evidence obtained as a result of the entry was admissible.
The evidence for the State tends to show that when the officers went to the Sparrow house to serve the petition on Karen Torpey they knocked on the front door and were invited into the house. Clearly, an entry made by police officers after being told to 'come in' by the occupant of a house is not an illegal entry. State v. Smith, 242 N.C. 297, 87 S.E.2d 593 (1955). Even so, the officers had in their possession a 'juvenile summons' issued by the district court of Mecklenburg County to be served on Karen Torpey. In State v. Wright, 1 N.C.App. 479, 162 S.E.2d 56, affirmed on other grounds, 274 N.C. 380, 163 S.E.2d 897 (1968), it is stated that an officer may not be interfered with when he is acting pursuant to a 'writ * * * sufficient on its face to show its purpose, even though it may be defective or irregular in some respect.' It is not for the officer to scrutinize each warrant or process he is to serve to determine its legal sufficiency. Even though a writ may be defective or irregular in some manner, if it is sufficient on its face to show its purpose, the officer is protected. State v. Wright, Supra.
The fifth assignment of error is overruled.
The sixth assignment of error relates to the action of the court in sustaining the objections to questions asked by defendants' counsel in his cross-examination of several of the State's witnesses. The defendants contend that the action of the judge in sustaining these objections was an arbitrary...
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Bronstein v. Superior Court In and For Maricopa County, 10047
...See, e.g., Lemieux v. Robbins, 414 F.2d 353 (1st Cir. 1969); People v. Olary, 382 Mich. 559, 170 N.W.2d 842 (1969); State v. Sparrow, 7 N.C.App. 107, 171 S.E.2d 321 (1969); Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d 247 (1969). We find, however, that the spirit and reasoning of Pear......