State v. Peeden

Jan 12, 1968
663
Reporters:
, ,
Before:
HiggiNs
HiggiNS, J.

The defendant’s jury trial, about which he complains, was held in August, 1960. Upon failure of the defendant (represented by counsel) to ‍​​​​​‌​‌​‌​​‌‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌​​​‌​​​​‌​‌‌​​​‌​​​‌​‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‍perfect his appeal, Judge Gwyn, in term, and in the presence of the defendant, adjudged he had abandoned the appeal and ordered that commitment be issued to enforce the judgment. That order was not challenged until July 7, 1966 when the defendant filed the ‍​​​​​‌​‌​‌​​‌‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌​​​‌​​​​‌​‌‌​​​‌​​​‌​‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‍petition for post conviction review. We doubt the authority of one Superior Court Judge to reverse another Superior Court Judge holding an appeal had been abandoned. It would seem error, if committed, could only be corrected by this Court. In view of the particular ‍​​​​​‌​‌​‌​​‌‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌​​​‌​​​​‌​‌‌​​​‌​​​‌​‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‍background of this case, we granted certiorari and have reviewed the entire record. According to the testimony of Officer Jones, Peeden stated soon after the fight (referring to the deceased Washburn and his companion Eagle), “I cut the hell out of both of them. . . .” The defendants ‍​​​​​‌​‌​‌​​‌‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌​​​‌​​​​‌​‌‌​​​‌​​​‌​‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‍were tried upon a Grand Jury indictment. Hence, any defects in the preliminary hearing are without significance. The Solicitor has power to try for a lesser included offense. State v. Miller, 272 N.C. 243. After review, we are unable to find in the record any error ‍​​​​​‌​‌​‌​​‌‌​‌​‌‌​​​‌‌​​​​‌‌‌‌​‌‌​​​‌​​​​‌​‌‌​​​‌​​​‌​‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‍of law committed by the trial court.

No error.

Shakp, J., having presided at the trial in 1960, did not participate in this decision.