State v. Powell

179 S.E.2d 153 (1971)

10 N.C. App. 443

STATE of North Carolina v. Dempsey Roy POWELL.

No. 7119SC83.

Court of Appeals of North Carolina.

February 24, 1971.

*156 Atty. Gen. Robert Morgan and Trial Attorney James E. Magner, Raleigh, for the State.

Bell, Ogburn & Redding, by J. Howard Redding, Asheboro, for defendant appellant.

MALLARD, Chief Judge.

Defendant contends in the first two assignments of error that the judge committed error in failing to allow his motion to quash the charges in the purported warrant. The motion was made "[b]efore evidence was introduced."

It appears from the record that at the 8 December 1969 Term of Recorder's Court of Randolph County, the defendant pleaded not guilty and was found guilty of assault on an officer and resisting arrest. From the judgment imposed, he appealed to the superior court. No motion to quash the warrant appears in the record of the trial in the recorder's court. The record is silent at what stage of the proceedings in the superior court the motion to quash was made other than it was "[b]efore evidence was introduced on behalf of the State or the defendants."

In moving to amend the warrant in superior court, the solicitor stated as follows: "I would like to amend the warrant to refusing to submit to arrest." The motion was allowed, but the instrument itself was not amended. Defendant correctly contends that the allowance of a motion to amend a warrant is not self-executing. In 4 Strong, N.C. Index 2d, Indictment and Warrant, § 12, it is stated:

"An order allowing an amendment is not self-executing, and when the amendments are not actually made pursuant to the order, the defects are not cured."

Thus we must construe the warrant as if no amendment had been allowed.

No grounds were stated by the defendant in superior court, and the trial judge made no inquiry, as to why the defendant contended the warrant should be quashed. In his brief defendant contends that the warrant "as amended" fails to charge the defendant with the offense of resisting arrest. This motion to quash was not made in apt time. In the case of State v. St. Clair, 246 N.C. 183, 97 S.E.2d 840 (1957), Chief Justice Winborne said:

"Decisions of this Court are uniform in holding that a motion to quash the warrant or bill of indictment, if made after plea of not guilty is entered, is addressed to the discretion of the trial court. The exercise of such discretion is not reviewable on appeal."

However, in the case of State v. Matthews, 270 N.C. 35, 153 S.E.2d 791 (1967), Justice Bobbitt (now Chief Justice) said: "Whether the motion to quash would be entertained when made for the first time in the superior court was for determination by the trial judge in the exercise of his discretion." *157 In the case before us Judge Long did not dismiss the motion for being improperly made but exercised his discretion and entertained the motion, and after consideration denied it. The exercise of such discretion to rule on the motion is not reviewable on appeal. State v. St. Clair, supra. The ruling on the motion, however, is subject to review.

The question is neither presented nor decided whether upon the factual situation alleged in this case the attempted charge of assault is included in the offense of resisting arrest.

Thompson testified on cross-examination by Mr. Bell, defendant's attorney:

"I believe, Mr. Bell, that when we tried Dempsey Roy Powell in Recorder's Court, and tried him for the citation, you stipulated that the warrant was lost. You stipulated that the warrant could not be found. There had been a warrant issued and we would try him and you would not object to trying him on the warrant that I had issued out of my citation book."

Even if the trial judge had made findings with respect to this so-called "stipulation," neither of the instruments in this case are sufficient to be treated as an information under the provisions of G.S. § 15-140.

There are two instruments purporting to be warrants in the record. One is "North Carolina Uniform Traffic Ticket 195061" and the other is the "warrant" quoted above. In the uniform traffic ticket the charge of resisting arrest is set forth by using only the two words "resist arrest." This is not sufficient to charge the offense. Also in this instrument the charge of assault is set forth by the use of the words "Assault On An Officer." The use of this language to identify the person assaulted is not sufficient to charge the offense of assault. In order to properly charge an assault, there must be a victim named, since by failing to name the particular person assaulted, the defendant would not be protected from a subsequent prosecution for assault upon a named person. State v. Scott, 237 N.C. 432, 75 S.E.2d 154 (1953). A valid warrant "must charge the offense with sufficient certainty to apprise the defendant of the specific accusation against him so as to enable him to prepare his defense and to protect him from a subsequent prosecution for the same offense, and to enable the court to proceed to judgment." 4 Strong, N.C. Index 2d, Indictment and Warrant, § 9. The uniform traffic ticket appearing in the record does not properly charge any crime. State v. Teasley, 9 N.C.App. 477, 176 S.E.2d 838 (1970). However, upon reading the charge of the court, it is made clear that the defendant was not tried upon the uniform traffic ticket but was tried upon the instrument purporting to be a warrant as hereinabove set out.

The prerequisites of the affidavit portion of a warrant properly charging the offense of resisting arrest are set forth in State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967) and State v. Fenner, 263 N.C. 694, 140 S.E.2d 349 (1965). One of these prerequisites is that the affidavit upon which the order of arrest is based shall "identify by name the person alleged to have been resisted, delayed or obstructed, and describe his official character with sufficient certainty to show that he was a public officer within the purview of the statute." (Emphasis Added.) In the affidavit of the instrument purporting to be a warrant upon which the defendant was tried, instead of using the name of Thompson, the identity of the officer is referred to as "this affiant."

In preparing warrants and bills of indictment, the law, as enacted by the Legislature and as interpreted by the courts, should be followed. The instruments in this record indicate that scant heed has been paid to the rules relating to the proper preparation of warrants. We do not approve of the words "this affiant" being used in lieu of identifying the officer *158 by name in the warrant; however, the warrant does show on its face that R. L. Thompson was the affiant. When acting as such, a State highway patrolman is a public officer within the purview of G.S. § 14-223. See G.S. § 20-188.

The name "Dempsey Roy Smith" appearing in the affidavit does not necessarily make the affidavit invalid because the allegation referring to "Dempsey Roy Smith" may be treated as a redundant allegation. A motion to quash for redundancy in the affidavit portion of a warrant upon which the order of arrest portion is based is addressed to the sound discretion of the trial judge. G.S. § 15-153; State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932); State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947).

Conceding but not deciding that the affidavit in the warrant upon which the defendant was tried was sufficient, a more serious question is presented when the order of arrest portion of the warrant is considered. In State v. McGowan, 243 N.C. 431, 90 S.E.2d 703 (1956), Justice Higgins said:

"A valid warrant of arrest must be based on an examination of the complainant under oath. G.S. 15-19. It must identify the person charged. Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609. It must contain directly or by proper reference at least a defective statement of the crime charged. State v. Gupton, 166 N.C. 257, 80 S.E. 989; Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470. It must be directed to a lawful officer or to a class of officers commanding the arrest of the accused. * * *"

See also State v. Smith, 262 N.C. 472, 137 S.E.2d 819 (1964).

In the order of arrest portion of the purported warrant, the person ordered arrested was "Dempsey Roy Smith" and not the defendant, "Dempsey Roy Powell." The instrument, therefore, does not meet the requirement that it be directed to a lawful officer commanding the arrest of the accused. In the affidavit the accused is listed as Dempsey Roy Powell, but Dempsey Roy Smith is ordered to be arrested.

In State v. Matthews, supra, it is said:

"The order of arrest signed by `R. F. Johnson, Desk Officer,' and the attached affidavit of C. G. Smith on which it is based, are to be read and considered as a single document and together constitute a warrant. State v. Gupton, 166 N.C. 257, 80 S.E. 989; Moser v. Fulk, 237 N.C. 302, 74 S.E.2d 729, and cases cited. Defects, if any, in the warrant affect its validity as a basis for a criminal prosecution on the charge set forth in the affidavit as well as its validity as a basis for a legal arrest. State v. Blackwell, 246 N.C. 642, 99 S.E.2d 867."

The affidavit and the order of arrest together constitute the instrument purporting to be a warrant upon which this defendant was tried. The order of arrest and the affidavit must be construed together. State v. Matthews, supra; Moser v. Fulk, supra. While an affidavit similar to the one under consideration may be sufficient under some circumstances, we hold that the warrant in this case is fatally defective and void because of the combination of failing to identify the officer by name in the affidavit and failing to order the defendant arrested in the order of arrest. The trial judge committed error in denying the defendant's motions to quash. The verdict and judgment are therefore vacated. This does not bar further prosecution of this defendant if the solicitor deems it advisable. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964); State v. Jordan, 247 N.C. 253, 100 S.E.2d 497 (1957).

Defendant has other assignments of error, some of which have merit; but in view of the ruling herein, we do not deem it necessary to discuss them.

Reversed.

PARKER and GRAHAM, JJ. concur.