State v. . McKeon

26 S.E.2d 914, 223 N.C. 404, 1943 N.C. LEXIS 286

• Court: Supreme Court of North Carolina
• Decided: September 29, 1943
• Status: Published

Opinion

Stacy, O. J.

The defendant pleaded guilty to the charge as contained in the bill of indictment. There was no other plea before or after judgment in the Superior Court. The appeal is to correct alleged errors of law apparent on the face of the record. S. v. Calcutt, 219 N. C., 545, 15 S. E. (2d), 9; S. v. Warren, 113 N. C., 683, 18 S. E., 498; S. v. Finch, 218 N. C., 511, 11 S. E. (2d), 547; 2 Am. Jur., 987.

On motion in arrest of judgment, made initially in this Court, S. v. Finch, supra, it is appropriate to grant the relief, when, and only when, some fatal error or defect appears on the face of the record proper. S. v. Black, 216 N. C., 448, 5 S. E. (2d), 313; S. v. McKnight, 196 N. C., 259, 145 S. E., 281; S. v. Bryson, 173 N. C., 803, 92 S. E., 698; S. v. Turner, 170 N. C., 701, 86 S. E., 1019. No such error or defect appears on the face of the record in the instant case. S. v. Linney, 212 N. C., 739, 194 S. E., 470. It is true, in the “agreed case on appeal” the offense is laid in Nash County, rather than in Edgecombe, which would be fatal if it appeared in the indictment, S. v. Beasley, 208 N. C., 318, 180 S. E., 598, but this discrepancy is to be disregarded, first, because it is at variance with the record proper, S. v. Wheeler, 185 N. C., 670, 116 S. E., 413; Ins. Co. v. Bullard, 207 N. C., 652, 178 S. E., 113, and second, because of its immateriality as the appeal is from a judgment rendered on a plea of guilty. S. v. Abbott, 218 N. C., 470, 11 S. E. (2d), 539. We are confined to the case as it was made to appear in the Superior Court.

It is provided by C. S., 4606, that in the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county in which by the indictment it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement. S. v. Oliver, 186 N. C., 329, 119 S. E., 370; S. v. Noland, 204 N. C., 329, 168 S. E., 412. Hence, as no challenge to the sufficiency of the indictment was interposed prior to the defendant’s plea of guilty, the offense is deemed to have been committed in Edgecombe County. S. v. Ray, 209 N. C., 772, 184 S. E., 836; S. v. Shore, 206 N. C., 743, 175 S. E., 116.

On the record as presented, no fatal error has been made manifest. The result, therefore, cannot presently be disturbed.

Affirmed.