State v. McMillan

Court of Appeals of North Carolina

State v. McMillan

200 S.E.2d 339, 19 N.C. App. 721, 1973 N.C. App. LEXIS 1748

CourtCourt of Appeals of North Carolina

DecidedNovember 14, 1973

DocketNo. 7315SC551

StatusPublished

This text of 200 S.E.2d 339 (State v. McMillan) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. McMillan, 200 S.E.2d 339, 19 N.C. App. 721, 1973 N.C. App. LEXIS 1748 (N.C. Ct. App. 1973).

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Opinion

MORRIS, Judge.

In order to hold that the heroin seized from the person of defendant was properly admitted into evidence, we must first determine whether the warrantless arrest was proper under G.S. 15-41 (2). We hold that it was proper.

G.S. 15-41 (2) provides that a peace officer may arrest without a warrant

“When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.”

The testimony of Officer Hoggard on voir dire is ample to justify this warrantless arrest. The information provided by the reliable confidential informer was that a black man named McMillan was selling narcotics in the parking lot of a car wash on Rawhut Street and that he was operating from a Ford Falcon automobile. Reasonable ground for belief — which is an element of the officer’s right to arrest under G.S. 15-41(2) — may be based on information given the officer by another if the source is reasonably reliable. State v. Roberts, 276 N.C. 98, 171 S.E. 2d 440 (1970)., The information furnished Officer Hoggard as well as his observation of the defendant’s leaving the car wash is sufficient to provide reasonable ground to believe the defendant would evade arrest if not immediately taken into custody.

Since the warrantless arrest is lawful, the search of defendant’s person incident thereto is also lawful, and the drugs seized are admissible into evidence. State v. Woody, 277 N.C. 646, 178 S.E. 2d 407 (1971); State v. Dobbins, 277 N.C. 484, 178 S.E. 2d 449 (1971); State v. Roberts, supra.

[725]*725Defendant also contends that the trial court violated G.S. 1-180 by taking over the examination of Officer Hoggard and in interrupting counsel for defendant in his argument to the jury. While G.S. 1-180 prohibits a trial judge from expressing an opinion on what has been shown by a witness’ testimony, it is not improper for the court to ask questions for the purpose of clarifying testimony. State v. Williams, 17 N.C. App. 31, 193 S.E. 2d 478 (1972); State v. Huffman, 7 N.C. App. 92, 171 S.E. 2d 339 (1969). There has been no prejudice to defendant by the court’s questioning of the witness; likewise, there is no prejudice in the court’s interrupting counsel for defense in his argument to the jury.

Affirmed.

Judges Britt and Hedrick concur.

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MORRIS, Judge.

In order to hold that the heroin seized from the person of defendant was properly admitted into evidence, we must first determine whether the warrantless arrest was proper under G.S. 15-41 (2). We hold that it was proper.

G.S. 15-41 (2) provides that a peace officer may arrest without a warrant

“When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.”

The testimony of Officer Hoggard on voir dire is ample to justify this warrantless arrest. The information provided by the reliable confidential informer was that a black man named McMillan was selling narcotics in the parking lot of a car wash on Rawhut Street and that he was operating from a Ford Falcon automobile. Reasonable ground for belief — which is an element of the officer’s right to arrest under G.S. 15-41(2) — may be based on information given the officer by another if the source is reasonably reliable. State v. Roberts, 276 N.C. 98, 171 S.E. 2d 440 (1970)., The information furnished Officer Hoggard as well as his observation of the defendant’s leaving the car wash is sufficient to provide reasonable ground to believe the defendant would evade arrest if not immediately taken into custody.

Since the warrantless arrest is lawful, the search of defendant’s person incident thereto is also lawful, and the drugs seized are admissible into evidence. State v. Woody, 277 N.C. 646, 178 S.E. 2d 407 (1971); State v. Dobbins, 277 N.C. 484, 178 S.E. 2d 449 (1971); State v. Roberts, supra.

[725]*725Defendant also contends that the trial court violated G.S. 1-180 by taking over the examination of Officer Hoggard and in interrupting counsel for defendant in his argument to the jury. While G.S. 1-180 prohibits a trial judge from expressing an opinion on what has been shown by a witness’ testimony, it is not improper for the court to ask questions for the purpose of clarifying testimony. State v. Williams, 17 N.C. App. 31, 193 S.E. 2d 478 (1972); State v. Huffman, 7 N.C. App. 92, 171 S.E. 2d 339 (1969). There has been no prejudice to defendant by the court’s questioning of the witness; likewise, there is no prejudice in the court’s interrupting counsel for defense in his argument to the jury.

Affirmed.

Judges Britt and Hedrick concur.

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200 S.E.2d 339, 19 N.C. App. 721, 1973 N.C. App. LEXIS 1748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcmillan-ncctapp-1973.

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