State v. HammondsState v. Hammonds
- Reporters:
- ,
- Before:
- Denny Justice.
Richard E. Weaver, Whiteville, Nance & Barrington, Fayetteville, for defendant.
The defendant moved in this Court in arrest of judgment. The motion is bottomed on the contention that the count upon which she was tried and convicted in the court below does not contain her name, and is, therefore, fatally defective. In support of her position she cites State v. Phelps, 65 N.C. 450; State v. McCollum, 181 N.C. 584, 107 S.E. 309; and State v. Camel, 230 N.C. 426, 53 S.E.2d 313.
There appears to be some conflict in the decisions of this Court on the question raised by the defendant‘s motion. In State v. Phelps, supra, however, the motion in arrest of judgment was directed to a bill of indictment, purporting to charge the defendant with receiving stolen gоods. The Court held that the indictment was “defective in not containing the name of the defendant in the proper place, and distinctly and positively charging him with receiving the stolen goods, etc.” Certainly, a warrant or bill of indictment would be defective in any case where the defendant wаs not clearly and positively charged with the commission of the purported offense. State v. Finch, 218 N.C. 511, 11 S.E.2d 547.
In the case of State v. McCollum, supra, the indictment contained five separate counts, and the one upon which the defendant was convicted did not contain his name. The Court said: “It is very generally held, in an indictment consisting of sеveral counts, that each count should be complete in itself, * * *.” The motion in arrest of judgment was upheld. While in State v. Camel, supra, this Court held a separately numbered count in a warrant which did not contain the name of the defendant, to be defective.
Notwithstanding the fact that some of our decisions would seem to support a contrary view, we think the warrant under consideration is sufficient to withstand the defendant‘s motion when considered in light of the provisions of
The function or purpose of a warrant or bill of indictment is (1) to mаke clear and definite the offense charged so that the investigation may be confined to that offense in order that the proper procedure may be followed and the applicable law invoked, and (2) to put the defendant on notice as to what he is charged with аnd to enable him to make his defense thereto. State v. Gregory, supra.
It is clear that in the instant case, the defendant knew the character of the offense charged and made her defense accordingly. She was tried solely on the count charging the unlawful and willful transportation of 16 pints of tax-paid whiskеy. It is true that if we consider this count as separately stated, her name does not appear in it, but we think the count should be treated as conjunctively stated; and the mere fact that the writer of the warrant placed a period at the end of the second count and started thе third count as a new sentence, beginning with the conjunction “and,” is a mere refinement. While we do not wish to encourage or approve carelessness in drafting warrants or bills of indictment, on the other hand, we do not look with favor upon the practice of quashing warrants or bills of indictment or arresting judgments for mere refinements or informalities that could not possibly have been prejudicial to the rights of the defendants in the trial court. State v. Moses, 13 N.C. 452; State v. Barnes, 122 N.C. 1031, 29 S.E. 381; State v. Hester, 122 N.C. 1047, 29 S.E. 380; State v. Francis, 157 N.C. 612, 72 S.E. 1041; State v. Ratliff, 170 N.C. 707, 86 S.E. 997; State v. Carpenter, 173 N.C. 767, 92 S.E. 373; State v. Poythress, 174 N.C. 809, 93 S.E. 919; State v. Hedgecock, 185 N.C. 714, 117 S.E. 47; State v. Whitley, 208 N.C. 661, 182 S.E. 338; State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Sumner, supra.
This Court, in the case of State v. Barnes, supra, speaking through Clark, J., later Chief Justice, said: “It is passing strange that any prosecuting officer should, by negligence or inadvertence, deрart, * * * from the forms so long used, and run the risk of a grave miscarriage of justice and throwing of a heavy bill of costs on the public by such carelessness. The accustomed and approved forms are accessible, and should be followed by the solicitors, * *. The Code, section 1183 (now
It is pointed out in State v. Ratliff, supra, that neither bad punctuation nor bad grammar vitiate an indictment.
In the case of State v. Poythress, supra, the defendant was charged in the complaint or affidavit with the following crimes: “(1) That he engaged in the business of selling, exchanging, bartering, or giving away spirituous liquors, for the purpose of gain, directly or indirectly; (2) That he had in his possession 27 pints of such liquors for the purpose of sale; (3) That he received at one time, and in one package, more that one quart of whiskey, to wit, 27 pints.” His name appeared nowhere in the affidavit or complaint. The warrant of arrest, however, which was issued at the time the complaint was filed, contained the name of the defendant and was partly in these words: “`These are therefore to command you forthwith to apprehend the said J. A. Poythress * * * to answer the above charge set forth in the affidavit, and be dealt with according to law.‘” The Court said, “The complaint did not allege any offense against the defendant, as his name was not mentioned therein, but the warrant refers distinctly to the complaint, and besides was physically annexed to it. When this is the case, it may supply any omission or deficiency in the former, and if the two, when considered together as parts of the same proceeding, sufficiently inform the defendant of the accusation made against him, nothing else is necessary to be done.”
Likewise, in the case of State v. Whitley, supra, the late Chief Justice Stacy, in considering a question similar to that now before us, said: “The next position taken by the defendants is that the second count in the bill of indictment is fatally defective, in that the names of the defendants are not repeated in charging the scienter. State v. McCollum, 181 N.C. 584, 107 S.E. 309; State v. May, 132 N.C. 1020, 43 S.E. 819; State v. Phelps, 65 N.C. 450. This is a refinement which the act of 1811, now G.S. § 4623 (prеsently
The defendant challenges the admissibility of certain evidence offered by the State, on the ground that the member of the Highway Patrol who arrested the defendant and seized the 16 рints of tax-paid whiskey found in her car, was not clothed with a search warrant.
The court, in the absence of the jury, heard the testimony of the patrolman and the witnesses for the defendant as to the circumstances under which the whiskey was found and seized. The testimony of the patrolman was to the effect that on the afternoon in question he was stationed at the intersection of Highways 211 and 74 at Bolton, in the County of Columbus, and was stopping all cars coming from the direction of Wilmington and checking the drivers’ licenses and the equipment of the cars. The defendant‘s 1952 Pontiac cаme from the direction of Wilmington and was driven within about 100 yards of where he was stationed. He motioned for it to come on, but, instead, after remaining parked for about five minutes, the driver turned the car around and headed back towards Wilmington. He followed it, stopped it, and requested the defеndant, who was driving the car, to show him her driver‘s license and car registration card. She gave them to him; that he saw in the front seat between the defendant and Mr. Homer McGirt, a passenger in the car, two packages of whiskey, and that he could see on the floor board, between them, twо more packages of whiskey; that “the bags were not crumpled across the top, they were open so I could see the whiskey.” The court held the challenged evidence admissible. The ruling will be upheld on authority of State v. Moore, 240 N.C. 749, 83 S.E.2d 912; State v. Ferguson, 238 N.C. 656, 78 S.E.2d 911, and State v. Harper, 235 N.C. 67, 69 S.E.2d 164.
The defendant excepts to and assigns as error the following рortion of his Honor‘s charge: “A reasonable doubt is not a vain, imaginary, captious or fictitious doubt, but it is a fair doubt, based on reason and common sense, and growing out of the testimony in the case. It is such a doubt as leaves one‘s mind, after a careful consideration of all the evidеnce, in such a condition that he cannot say he has an abiding conviction to a moral certainty of the defendant‘s guilt.”
The vice complained of here is the instruction that a reasonable doubt “is a fair doubt, based on reason and common sense, and growing out of the testimony in the case.” (Italics ours.) This instruction is inexaсt and incomplete. A similar instruction was disapproved in State v. Tyndall, 230 N.C. 174, 52 S.E.2d 272, and held for error in State v. Braxton, 230 N.C. 312, 52 S.E.2d 895.
In State v. Tyndall, supra, in speaking for the Court, the late Chief Justice Stacy said: “True it is, that a reasonable doubt may grow out
A trial judge in сharging the jury in a criminal case is not required to define the term “beyond a reasonable doubt,” in the absence of a request to do so. State v. Ammons, 204 N.C. 753, 169 S.E. 631; State v. Herring, 201 N.C. 543, 160 S.E. 891; State v. Steadman, 200 N.C. 768, 158 S.E. 478; State v. Johnson, 193 N.C. 701, 138 S.E. 19. Even so, it seems to be well nigh the universal practice of our trial judges to define it. The law does not require any set formula in defining reasonable doubt. State v. Dobbins, 149 N.C. 465, 62 S.E. 635; State v. Adams, 138 N.C. 688, 50 S.E. 765; State v. Whitson, 111 N.C. 695, 16 S.E. 332. But, whеn the trial judge undertakes to define the term, the definition given should be in substantial accord with definitions approved by this Court.
In the case of State v. Schoolfield, 184 N.C. 721, 114 S.E. 466, Stacy, J., later Chief Justice, defined reasonable doubt as follows: “A reasonable doubt is not a vain, imaginary, or fanciful doubt, but it is a sane, rational doubt. When it is said that the jury must be satisfied of the defendant‘s guilt beyond a reasonable doubt, it is meant that they must be `fully satisfied’ (State v. Sears, 61 N.C. 146), or `entirely convinced’ (State v. Parker, 61 N.C. 473), or `satisfied to a moral certainty’ (State v. Wilcox, 132 N.C. 1137, 44 S.E. 631) of the truth of the charge (State v. Charles, 161 N.C. 287, 76 S.E. 715). If after considering, comparing, and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith, to a moral certainty, in the defendant‘s guilt, then they have a rеasonable doubt; otherwise not. Commonwealth v. Webster, 5 Cush. Mass., 295, 52 Am.Dec. p. 730; 12 Cyc. 625; 16 C.J. 988; 4 Words and Phrases, [p.] 155.”
The above or other approved formulae may be found in scores of our decisions, among them see State v. Braxton, supra; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Hege, 194 N.C. 526, 140 S.E. 80; State v. Pierce, 192 N.C. 766, 136 S.E. 121; State v. Steele, 190 N.C. 506, 130 S.E. 308; State v. Wiseman, 178 N.C. 784, 101 S.E. 629.
Varser, J., in speaking for this Court in State v. Steele, supra, said: “We suggest, in addition to the definitions heretofore approved, for its practical tеrms, the following: `A reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving, generated by the insufficiency of the proof; an insufficiency which fails to convince your judgment and conscience, and satisfy your reason as to the guilt of the accused.’ It is not `a doubt suggested by the ingenuity of counsel, or by your own ingenuity, not legitimately warranted by the testimony, or one born of a merciful inclination or disposition to permit the defendant to escape the penalty of the law, or one prompted by sympathy for him or those connected with him.’ Jаckson, J., in United States v. Harper, C.C., 33 F. 471.”
We concede that this Court has from time to time declined to sustain exceptions to the definition of reasonable doubt in which it has been defined as “a
Even so, the identical question involved in the above exception is being presented to this Court over and over again. Many of these cases have been disposed of on other grounds. But, this particular complaint ought to be eliminated, and we, therefore, devoutly hope that all our trial judges who do not now adhere to the definition of reasonable doubt as approved herein, when using the expression “growing or arising out of the evidence in the case,” will do so.
In the trial below, we find no prejudicial error.
No Error.