State v. Duncan, 30 N.C. App. 112

State v. Duncan

30 N.C. App. 112 | N.C. Ct. App. | 1976

BRITT, Judge.

By his first assignment of error defendant contends the trial court erred in refusing to hear his motion to quash the indictment. We find no merit in the assignment.

The record on appeal discloses that when the case was called for trial the following transpired: The district attorney *114read the bill of indictment and asked how defendant pled. His attorney then asked to see the indictment after which he stated to the court: “For the record, we move to quash and enter a plea of not guilty.” The court then stated: “Under the new rules, you’re not allowed to move to quash at this time, as I understand them. That’s a motion you should have filed long before trial.”

Defendant argues that his motion to quash is governed by G.S. 15A-952(d) which provides: “Motions concerning jurisdiction of the court or the failure of the pleading to charge an offense may be made at any time.” Subsection (b) of said statute provides that “except as provided in subsection (d)” when certain motions are made in superior court, they must be made within the time limitations stated in subsection (c) unless the court permits a later filing. Subsection (c) states that unless otherwise provided, the motions listed in subsection (b) must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared; if arraignment is to be held at the session for which the trial is calendared, the motions must be filed on or before 5:00 p.m. on Wednesday prior to the session when trial of the case begins.

While G.S. 15A-951 does not require that a motion made during a trial or hearing be in writing, it does require that the grounds for the motion be stated and that it set forth the relief or order sought. In the case sub judice, the grounds for the motion were not stated and it did not set forth the relief. or order sought. Although the trial judge might have given a partially incorrect reason for his ruling, considering the form in which the motion was made, we hold that he did not err in failing to “hear” the motion.

There are additional reasons for our holding that the trial court did not err in its ruling. A bill of indictment may be quashed only for want of jurisdiction, irregularity in the selection of the grand jury, or fatal defect appearing on the face of the indictment. State v. Allen, 279 N.C. 492, 183 S.E. 2d 659 (1971).

A motion to dismiss or quash an indictment because of irregularity in the selection of the grand jury is now governed by G.S. 15A-955, and by virtue of G.S. 15A-952(b) (4) such motion is subject to subsection (c) summarized above.

*115In State v. Underwood, 283 N.C. 154, 195 S.E. 2d 489 (1973), our Supreme Court held that a motion to quash a warrant for failure to charge a crime, or a lack of jurisdiction of the court to try the case, will be allowed only when the defects appear on the face of the record. A careful review of the record in this case fails to disclose that the court lacked jurisdiction or that the indictment did not properly charge the offense for which defendant was tried.

We have considered the other assignment of error brought forward and argued in defendant’s brief but conclude that it too is without merit.

No error.

Chief Judge Brock and Judge Morris concur.