State v. Sparrow

7 N.C. App. 107 | N.C. Ct. App. | 1969

HedRICK, J.

The appellants’ first assignment of error is based on their exceptions to the fact that the judgment imposed in each case by the Judge in the Superior Court was more severe than that imposed in the District Court. The appellants contend that the imposition of greater sentences denied them due process of law and violated rights secured them by the Sixth Amendment to the U. S. Constitution. We do not agree. Article I, Sec. 13, of the North Carolina Constitution provides:

“No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful persons in open court. The Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal.”

In State v. Sherron, 4 N.C. App. 386, 166 S.E. 2d 836 (1969), where the identical question was raised, Parker, J., speaking for the Court, said:

“By G.S. 7A-272 the district court has exclusive, original jurisdiction for the trial of criminal actions below the grade of felony, and the same are declared to be petty misdemeanors. G.S. 7A-196 provides: ‘In criminal cases there shall be no jury trials in the district court. Upon appeal to superior court trial shall be de novo, with jury trial as provided by law.’ This provision does not transgress the requirements of Art. I, § 13 of our State Constitution. State v. Norman, 237 N.C. 205, 74 S.E. 2d. 602; State v. Pulliam, 184 N.C. 681, 114 S.E. 394.”

On appeal from district court to superior court trial is de novo. State v. Overby, 4 N.C. App. 280, 166 S.E. 2d 461 (1969); State v. Meadows, 234 N.C. 657, 68 S.E. 2d 406 (1951). We do not agree with the appellants’ contention that North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), is authority for holding that in cases involving petty misdemeanors which are appealed from the district court to the superior court where trial de novo is had, the superior court judge cannot impose a more severe sentence than did the district court judge. See Michigan v. O’Lary, 382 Mich. 559, 170 N.W. 2d 842 (1969).

The appellants by assignment of error No. 2 contend that the statutes, G.S. 110-21 and G.S. 110-39, under which they were charged, are unconstitutional for vagueness. The North Carolina Supreme Court was faced with an issue identical to the one raised in the instant case in In Re Burrus, 275 N.C. 517, 169 S.E. 2d 879 (1969). In answer to the question raised, the Court, speaking through Huskins, J., said, at page 531:

“Appellants argue that the statute fails to define any of the operative terms such as ‘delinquent’, ‘unruly’, ‘wayward’, ‘misdirected’ and ‘disobedient’ and contend that the statute is therefore void for vagueness and uncertainty.

“It is settled law that a statute may be void for vagueness and uncertainty. ‘A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ 16 Am, Jur. 2d, Constitutional Law § 552; Cramp v. Board of Public Instruction, 368 U.S. 278, 7 L. ed 2d 285; 82 S. Ct. 275; State v. Hales, 256 N.C. 27, 122 S.E. 2d 768. Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L. ed 1877, 67 S. Ct. 1538.”

Our courts have construed these juvenile statutes and have consistently upheld their constitutionality. State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920); State v. Coble, 181 N.C. 554, 107 S.E. 132 (1921); In Re Hamilton, 182 N.C. 44, 108 S.E. 385 (1921); In Re Coston, 187 N.C. 509, 122 S.E. 183 (1924); Winner v. Brice, 212 N.C. 294, 193 S.E. 400 (1937); In Re Burrus, 4 N.C. App. 523, 167 S.E. 2d 454; modified and affirmed, supra. Statutes similar to the N. C. Juvenile Courts Act have been held constitutional in over forty states against numerous attacks. In Re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967); See Paulson, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Supreme Court Review 167, 174.

By assignment of error No. 3, the defendants challenge the sufficiency of the warrants which charge each of the defendants with contributing to the delinquency of a minor. The assignment of error is based on the defendants’ exception to the court’s refusal to grant their motion for a bill of particulars. This exception does not support the assignment of error; nevertheless, we must consider the sufficiency of the warrant to support the judgment entered on the verdict as to the defendant Britton Oxidine. We believe that the warrant is sufficient to charge the defendants with a violation of G.S. 110-39, The warrant is couched in the language of the statute and the statute is cited. It is true that the words “harboring and providing lodging” standing alone would be insufficient, but the warrant must be read in its entirety. We believe the allegation that the defendants “did unlawfully, wilfully, contribute to the delinquency of Karen Torpey, white female, age 14, in violation of G.S. 110-39 of North Carolina by harboring and providing lodging for Karen Torpey and wilfully concealing said minor from officers knowing they had petitions for said Karen Torpey for delinquency, runaway and truancy” was sufficient to charge the offense. To wilfully conceal a minor from officers knowing that they had a petition for her arrest for runaway and truancy is an act calculated to contribute to the minor’s delinquency. The allegation is sufficient to identify the offense with which the defendant is charged, to protect the defendant from being put in jeopardy twice for the same offense, to enable the accused to prepare for trial, and to allow the court, on conviction, plea of nolo contendere or guilty, to pronounce sentence. State v. Greer, 238 N.C. 325, 77 S.E. 2d 917 (1953).

This assignment of error is overruled.

The appellants’ fourth assignment of error was that the trial court erred in denying their motion to sequester the State’s witnesses. In North Carolina, the sequestration of witnesses during a trial rests solely in the discretion of the trial judge, and the exercise of his discretion is not reviewable on appeal except where there has been an abuse of discretion. State v. Clayton, 272 N.C. 377, 158 S.E. 2d 557 (1968); State v. Spencer, 239 N.C. 604, 80 S.E. 2d 670 (1954); State v. Lovedahl, 2 N.C. App. 513, 163 S.E. 2d 413 (1968). A thorough examination of the record on appeal discloses that defendants were given ample opportunity to cross-examine the witnesses for the State and that they did, in fact, exercise their right to cross-examine. We find no abuse by the trial judge in the exercise of his discretion.

The appellants’ fifth assignment of error is as follows: “The evidence in this case was obtained as the result of an illegal entry of a private dwelling and should have been excluded.” By this assignment of error the appellants apparently attempt to raise the question of the legality of the entry by the officers into the Sparrow house; however, of the fifteen exceptions upon which the assignment of error is based, only three seem to relate to evidence obtained as a result of the entry. The fifteen exceptions grouped under this assignment of error raise questions of law not embraced in the assignment; nevertheless, since the entry into the Sparrow house by the officers for the purpose of serving the petition upon the juvenile, Karen Torpey, resulted in the charges of interfering with an officer against Marvin and Kathy Sparrow, we have considered the question of whether the entry into the Sparrow house by the officers was lawful, and whether any evidence obtained as a result of the entry was admissible.

The evidence for the State tends to show that when the officers went to the Sparrow house to serve the petition on Karen Torpey they knocked on the front door and were invited into the house. Clearly, an entry made by police officers after being told to “come in” by the occupant of a house is not an illegal entry. State v. Smith, 242 N.C. 297, 87 S.E. 2d 593 (1955). Even so, the officers had in their possession a “juvenile summons” issued by the district court of Mecklenburg County to be served on Karen Torpey. In State v. Wright, 1 N.C. App. 479, 162 S.E. 2d 56, affirmed on other grounds, 274 N.C. 380, 163 S.E. 2d 897 (1968), it is stated that an officer may not be interfered with when he is acting pursuant to a “writ . . . sufficient on its face to show its purpose, even though it may be irregular or defective in some respects.” It is not for the officer to scrutinize each warrant or process he is to serve to determine its legal sufficiency. Even though a writ may be defective or irregular in some manner, if it is sufficient on its face to show its purpose, the officer is protected. State v. Wright, supra.

The fifth assignment of error is overruled.

The sixth assignment of error relates to the action of the court in sustaining the objections to questions asked by defendants’ counsel in his cross-examination of several of the State’s witnesses. The defendants contend that the action of the judge in sustaining these objections was an arbitrary restriction of their right to cross-examine the State’s witnesses and an infringement of their Sixth Amendment right of confrontation. Of the seven exceptions grouped within this assignment, four of them were to the sustaining of objections made by the State. Of these four exceptions, the record does not disclose what the reply of the witnesses would have been had they been permitted to answer; therefore, it is impossible for us to know whether the ruling was prejudicial to the defendants. The record does not disclose that there was any effort made by counsel for the defendants to get the answers to the questions put in the record. It is incumbent upon the appellant not only to state that this was error but to show that such error was prejudicial to him. State v. Brown, 271 N.C. 250, 156 S.E. 2d 272 (1967); State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342 (1955).

The other three exceptions embraced within this assignment of error relate to the admissibility of evidence offered by the State and have nothing to do with the defendants’ sixth assignment of error. This assignment of error is without merit.

The defendants’ seventh assignment of error is that the trial court was biased and made comments on the evidence throughout the trial. On direct examination Marvin Sparrow was asked by his attorney to tell the court what occurred immediately prior to the arrival of the officers. Marvin replied: “Well, we had, all the people in the house had come into the living room for a meeting. We were talking about the police harassment we had been having for the last . . .” Upon objection of the solicitor and motion to strike, this testimony was stricken from the record. There was no error in the court’s ruling since the answer was not responsive to the question. By this testimony the witness was obviously undertaking to express his contempt for the law enforcement officers. What the residents of the Sparrow house were discussing immediately before the officers arrived was not in any way relevant to the instant cases.

The defendants contend that the exchange that took place between Marvin Sparrow, the solicitor and the court, when the defendant was told to refrain from calling the police liars, was a comment by the judge which produced prejudicial error under G.S. 1-180. We do not agree. In this situation, the judge was very careful to do all within his power to prevent the defendant from prejudicing the jury against himself. The conduct of the defendant Sparrow was uncalled for and was clearly an attempt on his part to assert, completely out of order, his opinion on the conduct of the police officers. The defendant, in his brief, states that “For the Court to then direct the witness, because of his use of this word (liar), ‘Now, let’s refrain from that sort of characterization’, and upon the witness’ ingenuous reply of ‘I’m sorry, he asked me,’ to further admonish him with, ‘You heard me, too, didn’t you?’ is a shocking violation of G.S. 1-180, and a clear comment by the judge on the weight of the evidence. This exchange sounds like an overly authoritarian father lecturing a child, and has no place in a court of law.” It is apparent from the foregoing that it is being asserted that witnesses should be allowed an unfettered right to take the witness stand and conduct the trial as they see fit without regard to rights of others involved in the trial. As was said in State v. Kirkman, 234 N.C. 670, 68 S.E. 2d 315 (1951):

“The conduct of a trial in the Superior Court, the preservation of order and the prevention of unfair tactics and behaviour on the 'part of witnesses and others must be left in large measure to the control and wise discretion of the presiding judge.”

We believe that the judge was acting properly in this case to prevent the defendant from causing any prejudicial effect by his words or actions. Any other course on the part of the trial judge would have allowed the defendant to prejudice the jury against himself.

Exceptions 18, 24, 35, 36 and 39 relate only to the admissibility of certain evidence offered by the State and in no way support the assignment of error.

The appellants’ eighth assignment or error is based on the defendants’ exceptions to the court’s denial of their motions for judgment as of nonsuit. In considering a motion for judgment as of non-suit it is necessary to consider the evidence in the light most favorable to the State.

Contributing to the delinquency of a minor:

We have examined the record in regard to this charge and have been unable to find any evidence which would tend to show that Marvin and Kathy Sparrow wilfully concealed Karen Torpey from the police knowing that they had a petition for her arrest. Karen Torpey testified that she spoke to the Sparrows briefly on three occasions. She did not ask them for permission to stay overnight in their house and there was no evidence which would impute to tfiem any knowledge of her presence. In fact, the evidence shows that they were not even at home on two of the nights but were in South Carolina. As to the defendants, Marvin and Kathy Sparrow, upon the charge of contributing to the delinquency of a minor, we hold that their motion for judgment as of nonsuit ought to have been allowed.

Britton Oxidine Contributing to the delinquency of a minor:

An examination of the record discloses that the evidence was sufficient to raise the inference that Britton Oxidine knew that the police had a petition to take Karen Torpey into custody for runaway and truancy and that she was, in fact, truant from home and school and that she was less than sixteen years of age. The evidence tends to show that Oxidine talked to Mrs. Torpey when she first went to the Sparrow house on Friday afternoon looking for her daughter, and that Mrs. Torpey told him that Karen was only fifteen years of age and that she was away from home without her permission; nevertheless, Oxidine later that week went with Karen and others on a trip to Chapel Hill, North Carolina, where they collectively spent the night in a dormitory. The evidence further tends to show that on the day the officers came to the Sparrow house to look for Karen, Oxidine took her from the house in a deliberate attempt to keep the officers from serving the petition on her. We hold, therefore, that the trial court correctly overruled the defendant Oxidine’s motion for judgment as of nonsuit upon the charge of contributing to the delinquency of Karen Torpey.

This evidence was sufficient to allow the jury, but not compel it, to conclude that Britton Oxidine did, in fact, contribute to the truancy, waywardness and uncontrollable conduct of Karen Torpey.

Interfering with an officer:

The evidence shows that when the officer attempted to hold Karen Torpey as she ran from the house, the defendant Marvin Sparrow pushed the officer and tried to prevent him from getting to Karen. When Marvin was arrested, his wife, Kathy, tried to pull him away from the officers and when this failed she resorted tc> kicking the officer as he went out the door. The appellants argue that these acts were not interfering with an officer in the performance of his duty since at the time they occurred the petition had already been served on Karen Torpey. This argument has a hollow ring since the act of serving the process did not terminate, in and of itself, the duty of the officers. They were under a duty to take Karen from the house and into their custody. She was attempting to evade the officers when the defendants intervened. Clearly, this evidence was sufficient to raise an inference that the defendants, Kathy and Marvin Sparrow were attempting to obstruct the officers in the performance of their duty. The trial court was correct in overruling their motion for judgment as of nonsuit as to this charge.

As their final assignment of error the defendants allege that the trial court committed error in denying their motion to have the court reporter record the State’s closing argument to the jury, thereby impairing their statutory and constitutional rights to judicial review. The motion was made after defendants’ counsel had argued the case to the jury. The court, in the exercise of its discretion, denied the motion. The defendants did not object to any portion of the solicitor’s argument during the trial, nor does the record on appeal point out any portion of the argument which they contend to have been prejudicial.

It may be appropriate to point out that there are rigid rules governing the requirements for the record on appeal. It is not a requirement of these rules that the arguments of counsel be included in the record on appeal. Rule 19(a), Rules of Practice in the Court of Appeals of North Carolina-. Compliance with these rules affords all parties adequate appellate review. When an attorney makes improper argument to the jury, it is the duty of the presiding judge to correct the transgression upon objection by the opposing attorney or ex mero motu. Cuthrell v. Greene, 229 N.C. 475, 50 S.E. 2d 525 (1948). Where, as here, there are no objections by the opposing attorney, and the trial judge has found no impropriety, we can but assume there was no improper argument.

The burden is on the appellant to show that he was prejudiced by the argument; moreover, the burden is on the appellant to make up the record on appeal. If he contended that the solicitor made improper argument he could have called it to the attention of the trial judge during the trial, or he could have included the remarks of the solicitor in the record on appeal himself. We know of no statute or rule requiring that the argument of counsel be recorded. This assignment of error is without merit.

The result is: As to the defendant Marvin Sparrow, on the charge of contributing to the delinquency of a minor — Reversed. As to the defendant Katherine Sparrow on the charge of contributing to the delinquency of a minor — Reversed. As to the defendant Marvin Sparrow on the charge of interfering with an officer — No error. As to the defendant Katherine Sparrow on the charge of interfering with an officer — No error. As to the defendant Britton Oxidine on the charge of contributing to the delinquency of a minor — No error.

MallaRD, C.J., and Morris, J., concur.