State v. Stubbs, 248

Decision Date13 October 1965
Docket NumberNo. 248,248
Citation265 N.C. 420,144 S.E.2d 262
PartiesSTATE, v. Joseph STUBBS.
CourtNorth Carolina Supreme Court

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

A. A. Coutras, Charlotte, for defendant appellant.

PARKER, Justice.

We have before us a confused record. As we understand this confused record, the history of this case is as follows:

At the 5 October 1964 Regular 'A' Criminal Session of Mecklenburg County Superior Court, the Honorable J. Frank Huskins, Judge Presiding, Defendant Stubbs and one Lester Emmett Carter were apparently tried on either separate indictments charging a crime against nature consolidated for trial, or a joint indictment charging each one of them with committing the crime against nature upon each other, a violation of G.S. § 14-177. Each defendant pleaded not guilty. Defendant Stubbs was represented at the trial by court-appointed counsel, A. A. Coutras, a member of the Mecklenburg County Bar. Each defendant was found guilty of the crime. Defendant Stubbs was sentenced upon the verdict to imprisonment for a term of not less than seven years nor more than ten years. In open court defendant Stubbs appealed from the judgment of imprisonment to the Supreme Court (there is nothing in the record before us to indicate that Carter appealed), and the trial court entered an order allowing Stubbs to appeal in forma pauperis. Stubbs by order of court was allowed 90 days within which to make up and serve upon the state his statement of case on appeal, and the State was allowed 30 days after service of his statement of case on appeal on it within which to file exceptions or to serve a counter case. Because the court reporter could not deliver a transcript of the evidence in the case and the charge of the court until 7 December 1964, defendant Stubbs by order of the trial judge was allowed an additional 30 days from 16 December 1964 to make up and serve upon the State his statement of case on appeal. On 25 January 1965 defendant Stubbs submitted to the solicitor for the State his statement of case on appeal. On 26 January 1965 the solicitor in writing accepted service of his statement of case on appeal. There is nothing in the record before us to indicate that the solicitor for the State filed exceptions or a counter case.

Defendant Stubbs' statement of case on appeal upon which the solicitor for the State accepted service was filed in the office of the Clerk of this Court on 3 September 1965. There is nothing in the record before us to indicate that the trial judge ever saw defendant Stubbs' statement of case on appeal. Defendant Stubbs' statement of case on appeal contains a statement of the organization of the court, an indictment charging Lester Emmett Carter with the commission of the crime against nature with defendant Stubbs (in this statement of the case on appeal there is no indictment against defendant Stubbs), Stubbs' and Carter's pleas of not guilty, the impanelling of the jury, the verdict that defendant Stubbs and Lester Emmett Carter are guilty of the crime against nature with the recommendation of medical help, the judgment against defendant Stubbs of imprisonment, his appeal entries, a statement of the evidence for the State and for defendants Stubbs and Carter, the charge of the trial court, and assignments of error. The charge of the trial court begins: 'Ladies and Gentlemen of the Jury. Joseph Stubbs in Case No. 42-477 and Lester Carter in Case No. 42-478 are charged with the detestable and abominable crime against nature, the State alleging that such crime was committed by these two defendants upon each other on the first day of August, 1964.'

On 10 June 1965 defendant Stubbs filed in the office of the Clerk of this Court a petition for a writ of certiorari, in which he alleges in substance, except when quoted: His counsel served his statement of case on appeal on the solicitor for the State on 25 January 1965. His counsel in preparing the case on appeal discovered that no indictment against him was in existence and no indictment against him could be found in the records of Mecklenburg County Superior Court. On 22 January 1965 he filed a petition for a writ of habeas corpus before Judge George B. Patton. Judge Patton on 29 January 1965 heard his petition for a writ of habeas corpus and after hearing the testimony 'found as a fact, based upon oral testimony, transcript of the record of trial and upon affidavit of the Assistant Solicitor, John H. Hasty, that at the time of trial at the October 5th Criminal Term of Superior Court of Mecklenburg County, there was in existence a Bill of Indictment charging the Petitioner, Joseph Stubbs with a Crime Against Nature,' and thereupon Judge Patton denied his petiion for a writ of habeas corpus. 'The State of North Carolina and a motion on February 10, 1965, to the Court that the records be made to speak the truch and that the Court ordered a Bill of Indictment in accordance with that which was in existence at the time of trial of the Petitioner. That the Court as of the date of this Petition has not entered on Order allowing the motion of the State of North Carolina.' On 17 March 1965 his counsel 'moved the court for a new trial based on the premise that the exact and substantial wordage of the original bill of indictment could not be established; however, said Petitioner's motion was denied by the court.' That the affidavit of the assistant solicitor, John H. Hasty, before Judge Patton sets forth an indictment, which is marked 'Indictment A,' and is to the effect that the indictment charged Lester Emmett Carter and defendant Stubbs with committing the crime against nature. That an indictment 'for which there is no court order as of the date of this Petition' was 'subsequently inserted into the records of the Mecklenburg County Court House'; it is marked 'Indictment B,' and charges Lester Emmett Carter and Joseph Stubbs with committing the crime against nature upon each other. That the indictments hereinbefore set out are substantially different in language. 'That 'Indictment B' is not properly in the record in that no order was issued by the Court allowing the State's motion to amend the record. That the record is incomplete as of the date of this Petition and therefore said Petitioner was unable to proceed with his appeal. The Defendant Petitions for Writ of Certiorari and assigns as error the following: 1. Defendant Petitioner was unable to proceed with his appeal in that the original Bill of Indictment was missing from the record.

2. That 'Indictment A' as hereinbefore set forth in fatally defective on its face. 3. That 'Indictment B' is not properly in the record. 4. That 'Indictment A' and 'Indictment B' are substantially different in wordage. Your Petitioner has complied with all requirements known to him in this Petition for Writ of Certiorari and respectfully requests that the Writ be granted to the end that the entire record proper be reviewed and that the case on appeal served on the Solicitor of the 14-A Solicitorial District be reviewed and that the defendant Petitioner be granted a new trial.'

Defendant's petition for a writ of certiorari was allowed by order of this Court in conference on 23 July 1965.

On 10 September 1965 there was filed in the office of the Clerk of this Court a stipulation in the instant case signed on 3 September 1965 by the assistant solicitor, John H. Hasty, and A. A. Coutras, counsel for defendant Stubbs, in which it is stated that to 'the best of their recollection, that the attached is a substituted copy of the indictment in the above entitled case.' The attached substitute copy of an indictment charges Lester Emmett Carter and defendant Joseph Stubbs with committing the crime against nature upon each other, and purports to have been found a true bill by the grand jury at the 7 September 1964 Criminal Session. This stipulation and attached substituted copy of the indictment are inserted in defendant Stubbs' statement of case on appeal, and this stipulation further states 'that the case on appeal, as submitted, is settled and agreed to by the undersigned.'

There can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. State v. Albarty, 238 N.C. 130, 76 S.E.2d 381; 42 C.J.S. Indictments and Informations § 1.

On appeal in criminal cases, the indictment or warrant and plea on which the case is tried, the verdict and judgment appealed from are essential parts of the transcript record of a criminal action brought to this Court. Rule 19(1) of the Rules of Practice in the Supreme Court, 254 N.C. 795; State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819.

It is the duty of appellant to see that the record is properly made up and transmitted to the Court. State v. Jenkins, supra; State v. Golden, 203 N.C. 440, 166 S.E. 311; State v. Frizell, 111 N.C. 722, 16 S.E. 409.

The case of State v. McDraughon, 168 N.C. 131, 83 S.E. 181, had a factual situation in many ways similar to the factual situation in the instant case. In that case the defendant was tried in the superior court upon an indictment duly found, and upon conviction was sentenced to serve eight months upon the county roads. Since the trial the indictment was lost, without fault, so far as the record discloses, upon the part of the defendant, and therefore is not a part of the transcript. The defendant made no effort to have the indictment supplied in the superior court, nor did he move in the Supreme Court for certiorari. The Attorney General made a motion to dismiss the appeal because of the insufficiency of the transcript. The Court in its opinion states the rule applicable to the instant case:

'In cases of this character, the jurisdiction of this court is not original, but appellate * * *.

'The presumption is that the judgment of the superior court is correct, and the burden is on the appellant to show errors. As far back as State v. Butts, 91...

To continue reading

Request your trial
36 cases
  • State v. Fox
    • United States
    • North Carolina Supreme Court
    • July 31, 1970
    ...Nos. 24--856 and 25--854, 'essential parts of the transcript record in a criminal action brought to this Court.' State v. Stubbs, 265 N.C. 420, 423, 144 S.E.2d 262, 265. The written orders made throughout the trial and the judgments from which defendant appealed were not shown to have been ......
  • State v. Atkinson, 22
    • United States
    • North Carolina Supreme Court
    • May 14, 1969
    ...132 S.E.2d 321. 'It is the duty of appellant to see that the record is properly made up and transmitted to the Court.' State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262. The record shows that on the day the judgment was pronounced in the superior court the defendant gave notice of appeal to thi......
  • Blevins v. Town of West Jefferson
    • United States
    • North Carolina Court of Appeals
    • April 17, 2007
    ...court." Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563, 402 S.E.2d 407, 408 (1991) (citing State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965)). A. Notice of Appeal From the Superior The record on appeal does not contain a notice of appeal from the Superior Court's or......
  • State v. Old, s. 66--C
    • United States
    • North Carolina Supreme Court
    • September 20, 1967
    ...of the Superior Court to correct its own records in the manner pointed out by this Court in State v. Cannon, supra, and State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262. The action is remanded to the Superior Court and when the corrections are made and certified, they shall be attached to and ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT