251 N.C. 320 | N.C. | 1959
Article I, section 12, of the Constitution of North Carolina provides that “no person .shall be put to answer any criminal charge except as hereinafter allowed, but by indictment, presentment or impeachment, but any person, when represented by counsel, may, under such regulations as the Legislature shall prescribe, waive indictment in all except capital cases.”
G.S. 15-140 provides that a defendant, when the offense charged is a misdemeanor, may waive bill of indictment but that he may not do so “unless by consent of the defendant’s counsel in such action who shall be one either employed by defendant to defend him in the action or one appointed by the court to examine into the defendant’s case and report as to the -same to the court.” In the instant cases the minutes of -the court do not affirmatively disclose that counsel for defendants, if any they had, consented to the waiving of the finding and return into court of the bills of indictment. We must assume that the record is true and correct and no such consent was given. The purported waivers of bills of indictment were not in accordance with the statute and are invalid and in the absence of bills of indictment found and returned into court by the Grand Jury in cases numbered 59-634A, 59-680A, 59-711A, 59-702A, 59-703A, 59-710A, and 59-778A, the court was without authority to proceed to trial or to enter judgment. State v. Thomas, 236 N.C. 454, 459, 73 S.E. 2d 283. No warrants had been issued in these cases, charging defendants with “unlawful possession of whiskey,” and defendants had not been tried in an inferior court on such charges.
The judgments are arrested in oases numbered 59-634A, 59-680A, 59-711Á, 59-702A, 59-703A, 59-710A, and 59-778A. If the State so elects, defendants may be again tried in the cases enumerated next
In the cases, numbered 59-634, 59-680, 59-711, 59-702, 59-703, 59-710 and 59-778, warrants were issued and executed, charging public drunkenness, and defendants were tried in the City Court of Asheville and appealed. In Superior Court defendants were tried de novo on the warrants. In these oases tíre court had jurisdiction to entertain the pleas iand enter judgments. State v. Thomas, supra, at page 460. Prison sentences were imposed and suspended on conditions. The court has found as a fact that conditions have been breached and has ordered the sentences to be served.
Since the judgments in the oases in which defendants were charged with unlawful possession of whiskey, enumerated above, have been arrested, this renders uncertain and indefinite the time of beginning of the sentences in cases numbered 59-680, 59-711, 59-703 and 59-710; and these cases are remanded for proper sentences. State v. Austin, 241 N.C. 548, 85 S.E. 2d 924.
We affirm the judgments in cases numbered 59-634, 59-702 and 59-778, and the orders putting prison sentences into effect. Commitments shall issue in these cases.
If defendants have already been committed, they shall be credited with time served. State v. Austin, supra.
On petition of Searcy: Case No. 59-634, judgment and order affirmed; Cases Nos. 59-634A, 59-680A and 59-711A, judgments arrested; Cases Nos. 59-680 and 59-711, remandied for proper sentences.
On petition of Miller: Case No. 59-702, judgment and order affirmed; Cases Nos. 59-702A, 59-703A and 59-710A, judgments arrested; Cases Nos. 59-703 and 59-710, remanded for proper sentences.
On petition of Morrow: Case No. 59-778, judgment and order affirmed; Case No. 59-778A, judgment arrested.
