State v. Gales
82 S.E.2d 80
N.C.
1954
Check Treatment
EeviN, J.

The prisoner asserts by his assignments of error that the trial judge erred in denying his motion to quash the indictment, in admitting certain testimony of the State’s witness Gurney R. Lane, in refusing to withdraw from the petit jury the question of first degree murder, in charging the petit jury, in disallowing his motion for a vacation of the *322 verdict and a new trial, in overruling bis motion in arrest of judgment, and in 'entering judgment.

Tbe indictment was returned at tbe November Term, 1953, of tbe Superior Court of Iloke County by tbe grand jury of ‍​​​​‌​​​‌​‌​​​‌​​‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​‌​‌​​​‌‌​‌‌‍eighteеn members, nine of wbom were drawn at that term and nine of whom were drawn at tbe previous April Term.

After pleading “not guilty” to tbe charge, tbe prisoner moved to quash tbe indictment on tbe ground that tbe grand jury was drawn and organized in violation of this provision of G.S. 9-25: “At tbe April term of superior court held for tbe county of Hoke a grand jury shall be drawn, . . . and it shall serve until tbe following April term, Hoke superior court.” He undertook to raise tbe same pоint a second time subsequent to tbe verdict by bis motion in arrest of judgment.

An objection to an indictment based on defects or irregularities in tbe drawing or organization of tbe grand jury must be taken by a motion to quash tbe indictment. G.S. 9-26; Miller v. State, 237 N.C. 29, 74 S.E. 2d 513. It cannot be urged in arrest of judgment. S. v. Sears, 61 N.C. 146. Tbe mоtion to quash must be seasonably made. These rules regulate tbe time for tbe motion: (1) An accused may make tbe motion to quash tbe indictment as a matter of right up to tbe time when be is arraigned and enters bis plea; (2) the presiding judge has tbe discretionary power to permit tbe accused to make tbe motion to quash tbe indictment as a matter of grace after his plea is entered and until tbe petit jury is sworn and impaneled tо try ‍​​​​‌​​​‌​‌​​​‌​​‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​‌​‌​​​‌‌​‌‌‍tbe case on its merits; and (3) tbe presiding judge has no power to entertain a motion to quash the indictment at all after tbe petit jury is sworn and impaneled to try tbe case on its merits. An accused waives any objection to tbe grand jury which indicts him on tbe ground of defects or irregularities in its drawing or organization unless be takes the оbjection by a motion to quash tbe indictment before entering a plea to tbe merits. Miller v. State, supra; S. v. Banner, 149 N.C. 519, 63 S.E. 84; S. v. Gardner, 104 N.C. 739, 10 S.E. 146.

The trial judge observed these principles in denying tbe motion to quash tbe indictment and tbe motion in arrest of judgment. Tbe prisoner waivеd bis objection to tbe grand jury by bis plea to tbe merits. His subsequent motion to quash came too late.

We deem it nоt amiss to note in passing from this phase of tbe appeal that the grand jury was drawn and organized in confоrmity with Chapter 465 of tbe Public-Local Laws of 1935, which provides “for rotating grand juries in Hoke County” and was in force on tbe effective date of tbe General Statutes.. Tbe provision invoked by tbe prisoner was originally enacted as a part of Chapter 104 of tbe Public Laws of 1923, which was repealed by Chapter 465 of tbe Public-Lоcal Laws of 1935. The com *323 pilers of the General Statutes overlooked this repeal of Chapter 104 of the Public Laws of 1923, and inadvertently incorporated the provisions of the repealed statute in G.S. 9-25. Thеir action in so doing did not impair the validity of Chapter 465 of the PublicrLocal Laws ‍​​​​‌​​​‌​‌​​​‌​​‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​‌​‌​​​‌‌​‌‌‍of 1935 in any way because thе General Assembly has decreed in express terms that “the General Statutes . . . shall not have the effect of repealing . . . public local statutes ... if such statutes were in force on the effective date of thе General Statutes.” G.S. 164-7.

The State sought to draw from its witness Gurney R. Lane a description of personal injuries suffered by the deceased in a beating which the prisoner admitted he administered to her about 1 March, 1953. The solicitor propounded these questions to the witness and elicited these replies from him: “(Q.) When his wife came tо your house, did you observe her? (A.) Yes. (Q.) What was her condition? (A.) She had a bruised place on her shoulder and on her leg down here. She had a bruised place on this leg, too. She walked and caught a ride from where thеy live to my house. She wanted to borrow some money.” The prisoner objected generally to eaсh question, but did not move to strike either answer in whole or in part. The evidence indicating that the prisoner intentionally inflicted personal injuries upon the deceased on an occasion dntedating the homiсide was responsive to the questions put to the witness. Moreover, it was admissible as bearing on intent, malice, motive, premeditation, and deliberation on the part of prisoner. S. v. Ray, 212 N.C. 725, 194 S.E. 482; S. v. Horne, 209 N.C. 725, 184 S.E. 470. The prisoner waived any objеction to the unresponsive part of the second answer by failing to make a specific motion to strike out that particular part. 23 C.J.S., Criminal Law, section 1073. We note, moreover, that the prejudicial character of the unresponsive part is not manifest.

The trial judge rightly refused to withdraw from the petit jury the question of first degree murder. The State’s evidence was sufficient to show that ‍​​​​‌​​​‌​‌​​​‌​​‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​‌​‌​​​‌‌​‌‌‍the prisoner committed a willful, deliberatе, and premeditated murder within the meaning of the statute dividing murder into two degrees. G.S. 14-17; S. v. Lamm, 232 N.C. 402, 61 S.E. 2d 188; S. v. Cockrell, 230 N.C. 110, 52 S.E. 2d 7; S. v. Cash, 219 N.C. 818, 15 S.E. 2d 277; S. v. Wall, 218 N.C. 566, 11 S.E. 2d 880; S. v. Hawkins, 214 N.C. 326, 199 S.E. 284.

The assignments of error relating tо the charge have received consideration commensurate with the gravity of the case. They do not present any novel or unusual question requiring elaboration, or point out any error of commission оr omission warranting a new trial.

The exception to the overruling of the motion for a vacation of thе verdict and a new trial and the exception to the entering of the judgment are formal and require no discussion.

*324 Prejudicial error bas not been made to appear. Hence, ‍​​​​‌​​​‌​‌​​​‌​​‌​‌‌‌​​‌​‌‌​‌​​‌​‌‌​‌​‌​​​‌‌​‌‌‍the judgment of the trial court must be upheld.

No error.