State v. Stallings

166 S.E.2d 464, 4 N.C. App. 184, 1969 N.C. App. LEXIS 1464
CourtCourt of Appeals of North Carolina
DecidedApril 2, 1969
DocketNo. 6910SC145
StatusPublished
Cited by2 cases

This text of 166 S.E.2d 464 (State v. Stallings) 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. Stallings, 166 S.E.2d 464, 4 N.C. App. 184, 1969 N.C. App. LEXIS 1464 (N.C. Ct. App. 1969).

Opinion

Mallard, C.J.

Defendant contends, among other' things, that the warrant of arrest was obtained by the witness Hilliard in a manner which violated the provisions of G.S. 15-19, in that, he was never examined under oath by the issuing officer; that the warrant was void from the beginning, therefore, the trial in the Zebulon recorder’s court was based on a void warrant; and that on an appeal the superior court did not have jurisdiction to try the defendant on this purported warrant.

Warrants may not be issued without examination of the complainant under oath. State v. Higgins, 266 N.C. 589, 146 S.E. 2d 681; G.S. 15-19. In this case the record shows that the affidavit constituting a part of the warrant herein was subscribed and sworn to before W. B. Hopkins, clerk of the recorder’s court.

Although the testimony of the officer regarding the warrant appears to be contradictory with respect to whether he was sworn and examined by the issuing official prior to the issuance of the warrant, the record reveals that the following question was propounded to and answered by the officer:

“Q. Did you ever swear to this warrant at the time you signed it; did you swear to the content?
A. The best I recall, I did.”

This is affirmative testimony that the warrant was sworn to by the complainant. Since the warrant is valid and regular on its face, and the evidence does not clearly establish its invalidity, we are of the opinion and so hold that the warrant in this case is not void.

[187]*187Defendant also contends that the court committed error in denying his motion to quash the warrant and in denying his motion in arrest of judgment on the grounds that the issuing officer was a police officer and also the clerk of the recorder’s court.

“A motion in arrest of judgment can be based only on matters which appear on the face of the record proper, or on matters which should, but do not, appear on the face of the record proper, (citations omitted) The record proper in any action includes only those essential proceedings which are made of record by the law itself, and as such are self-preserving, (citations omitted) The evidence in a case is no part of the record proper, (citations omitted) In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment.” State v. Gaston, 236 N.C. 499, 73 S.E. 2d 311.

The motion to quash, which was made in the superior court after pleading to the warrant in the recorder’s court, is addressed to the discretion of the trial court. The exercise of such discretion in the absence of abuse thereof is not reviewable on appeal. “Mere irregularities in a warrant regular and valid on its face are waived unless motion to quash is made before plea.” 4 Strong, N. C. Index 2d, Indictment and Warrant, § 15. With respect to defendant’s motion in arrest of judgment after pleading in the recorder’s court, such plea is held to have waived defects, if any, incident to the authority of the person who issued the warrant. State v. Matthews, 270 N.C. 35, 153 S.E. 2d 791; State v. Blacknell, 270 N.C. 103, 153 S.E. 2d 789.

The Recorder’s Court of Zebulon and Little River Township had jurisdiction of the offense charged in the warrant, and by entering his plea in that court without moving to quash the warrant, the defendant waives defects, if any, incident to the authority of the person who issued the warrant, and this waiver applies both in a motion to quash and in a motion in arrest of judgment on the same grounds. State v. Wiggs, 269 N.C. 507, 153 S.E. 2d 84; State v. Whaley, 269 N.C. 761, 153 S.E. 2d 493.

Defendant contends that the trial court committed error in admission of certain evidence and in its ruling on certain questions. These questions relate, in the main, to references to cross burning. The first time cross burning is mentioned in the record is when the witness Hilliard responded to the following question in the following manner:

[188]*188“Q. Tell us what happened?
A. Well, I had a call to go out to the residence of James Neill in reference to a cross burning.”

The defendant objected, moved to strike which motion was denied, and the defendant excepted.

The next reference to cross burning in the record is when the following question was propounded and answer made thereto by the witness Hilliard:

“Q. Of what?
A. Some liquor. Inside the car were several empty beer cans.
Me. SbNter: Objection.
Court: Overruled.
A. Several beer cans, three full beers and a fifth of vodka half gone. We took it and carried Mr. Stallings on to the police station and locked him up after questioning him some first in reference to this cross burning, which he was later involved in.”

There was no motion to strike the above reference to cross burning by the defendant. However, the court instructed the witness as follows: “Don’t comment on that, sir.”

The next occasion in the record in which cross burning is referred to is while the same witness Hilliard was being questioned, when the following question and answer appear in the record:

“Q. What were you doing when you first saw the defendant drive by?
Mr. SeNTEr: Objection.
Court: Overruled.
Exception No. 2.
A. I was talking to the residents of this home in regard to this cross burning.”

The defendant objected and moved to strike which objection was overruled and motion was denied.

The defendant did not object or move to strike the reference of the officer to the cross burning in which the defendant was later involved. In addition to this failure, after the witness Hilliard was taken on cross-examination by the defendant, the following question and answer were propounded by the defendant, not by the State:

[189]*189“Q. Mr. Hilliard, do you have notes on this; did you or did you not make a statement to Robert Lindsey Stallings that if he would plead guilty and pay-off a charge of cross burning that you would request the lower court to accept a plea of careless and reckless driving to this charge?
A. No, sir.”

The defendant, therefore, cannot complain inasmuch as he is the one who brought out the fact that the defendant was charged with “cross burning.”

The next reference in the record with respect to cross burning is when the defendant himself was testifying and in response to questions asked by the defendant’s lawyer, the defendant, without objection on the part of the State or the defendant, answered the following questions as follows:

“Q. What did he tell you when you went back to the car?
A. He asked me what we were doing burning the cross.
Q. What did you tell him?
A. I told him we haven’t burn no cross.”

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Cite This Page — Counsel Stack

Bluebook (online)
166 S.E.2d 464, 4 N.C. App. 184, 1969 N.C. App. LEXIS 1464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stallings-ncctapp-1969.