State v. Sparrow

171 S.E.2d 321, 7 N.C. App. 107, 1969 N.C. App. LEXIS 1125
CourtCourt of Appeals of North Carolina
DecidedDecember 31, 1969
DocketNo. 6926SC504
StatusPublished
Cited by2 cases

This text of 171 S.E.2d 321 (State v. Sparrow) 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. Sparrow, 171 S.E.2d 321, 7 N.C. App. 107, 1969 N.C. App. LEXIS 1125 (N.C. Ct. App. 1969).

Opinion

HedRICK, J.

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:

“No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful persons in open court. The Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal.”

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:

“By G.S. 7A-272 the district court has exclusive, original jurisdiction for the trial of criminal actions below the grade of felony, and the same are declared to be petty misdemeanors. G.S. 7A-196 provides: ‘In criminal cases there shall be no jury trials in the district court. Upon appeal to superior court trial [113]*113shall be de novo, with jury trial as provided by law.’ This provision does not transgress the requirements of Art. I, § 13 of our State Constitution. State v. Norman, 237 N.C. 205, 74 S.E. 2d. 602; State v. Pulliam, 184 N.C. 681, 114 S.E. 394.”

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, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (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. O’Lary, 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:

“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.
“It is settled law that a statute may be void for vagueness and uncertainty. ‘A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ 16 Am, Jur. 2d, Constitutional Law § 552; Cramp v. Board of Public Instruction, 368 U.S. 278, 7 L. ed 2d 285; 82 S. Ct. 275; State v. Hales, 256 N.C. 27, 122 S.E. 2d 768. Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L. ed 1877, 67 S. Ct. 1538.”

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. [114]*114132 (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, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (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 [115]*115has 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.

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Bluebook (online)
171 S.E.2d 321, 7 N.C. App. 107, 1969 N.C. App. LEXIS 1125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sparrow-ncctapp-1969.