State v. Wrenn

182 S.E.2d 600 (1971)

12 N.C. App. 146

STATE of North Carolina v. John Paul WRENN.

No. 7110SC410.

Court of Appeals of North Carolina.

August 4, 1971.

Atty. Gen. Robert Morgan by Trial Atty. H. A. Cole, Raleigh, for the State.

Tharrington & Smith by Roger W. Smith, Raleigh, for the defendant.

*601 BROCK, Judge.

Defendant argues much of his assignments of error as though he had been charged and convicted under G.S. § 90-111.1 of the felony of growing marijuana. Defendant was charged and convicted of the felony of possession of marijuana under G.S. § 90-88.

Defendant assigns as error that no probable cause for issuance of the search warrant is set out in the affidavit. Defendant relies upon the requirements of G.S. § 15-25.1 prior to its repeal and rewrite in 1969, and relies upon our decision in State v. Milton, 7 N.C.App. 425, 173 S.E.2d 60. The search warrant in the instant case was issued while G.S. § 15-25.1, cited above, was in effect. However the affidavit in this case passes the tests which the affidavit in Milton failed to pass. In the present case the affiant observed marijuana plants growing in defendant's back yard. This alone justified a finding of probable cause to issue the search warrant. The evidence on voir dire only serves to strengthen the probable cause. This assignment of error is overruled.

Defendant assigns as error that statements made by defendant to the officers should have been excluded as "fruits of an illegal search". We have held the search warrant valid; therefore, this assignment of error is overruled without further discussion.

Defendant assigns as error that the trial judge denied his motion to quash the indictment. The minutes of the Court show the following: "2/1/71 Upon the calling of this case for trial, defendant through counsel, Carl Churchill, made a motion to quash the bill of indictment. Motion denied." The Record on Appeal discloses no grounds for the motion, nor any evidence in support of any grounds to quash the indictment. For the first time, in his brief, defendant undertakes to argue that the indictment should be quashed because he was denied a speedy trial. From the Record on Appeal we can see that defendant was arrested on 15 July 1968, the same date the search warrant was issued, and that defendant was tried in February 1971. This passage of time standing alone shows no prejudice to defendant; so far as we can tell the delay may have been at defendant's requests. This assignment of error is overruled.

Upon an examination of the entire record we conclude that defendant had a fair trial, free from prejudicial error.

No error.

MORRIS and HEDRICK, JJ., concur.