State v. Able

13 N.C. App. 365 | N.C. Ct. App. | 1971

BRITT, Judge.

Defendant assigns as error the denial of his timely made motion to abate the action and quash the indictment upon the ground that he was arrested on a capias when he had never been served with a warrant.

In State v. Hargett, 255 N.C. 412, 121 S.E. 2d 589 (1961), the defendant before pleading to the bill of indictment, moved that the proceedings be stayed and abated. He contended he was denied due process of law because he was arrested when no warrant had been issued and because a preliminary hearing was not held. In that case the court held at page 413:

“When a person is arrested without a warrant, the arresting officer shall inform such person of the charge against him and shall immediately, or ‘as soon as may be,’ take him before a magistrate and, on proper proof, a warrant shall be issued; an officer failing to comply with these requirements is subject to penalties. G.S. 15-45 and G.S. 15-47. A preliminary hearing may be held unless waived by defendant. G.S. 15-85 and G.S. 15-87. But none of these statutes prescribes mandatory procedures affecting the validity of a trial. A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction. ‘We have no statute requiring a preliminary hearing, nor does the State Constitution require it. It was proper to try the petitioner upon a bill of indictment without a preliminary hearing.’ State v. Hackney, 240 N.C. 230, 237, 81 S.E. 2d 778. See also State v. Doughtie, 238 N.C. 228, 232, 77 S.E. 2d 642; State v. Cale, 150 N.C. 805, 808, 63 S.E. 958.”

We hold that the failure to serve a warrant on defendant in this case did not affect the validity of the trial.

Defendant contends that he was, in essence, denied bond which was set at $500, he being indigent and unable to get a bondsman to sign his bond since he was arrested on a capias for failure to appear. We find no merit in this contention. Assuming, arguendo, that this is the practice of bondsmen, defendant failed to show that he was refused bond for this reason. Also, defendant’s contention that his denial of bond prevented him from aiding in finding witnesses to prepare his defense is without merit as he failed to present any evidence of witnesses that he would have been able to locate to assist in the preparation of his defense, and why counsel would not have been adequate to locate said witnesses.

Defendant’s other assignments of error are deemed abandoned under Rule 28, Rules of Practice in the Court of Appeals of North Carolina, since there are no reasons or arguments set forth in defendant’s brief in support of said assignments of error.

For the reasons stated, we find

No error.

Judges Brock and Vaughn concur.