State v. Bellar

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192 S.E.2d 86 (1972)

16 N.C. App. 339

STATE of North Carolina v. Lila Greene BELLAR.

No. 7226SC691.

Court of Appeals of North Carolina.

October 25, 1972.

*88 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Dale P. Johnson, for the State.

Lila G. Bellar, Charlotte, pro se.

BROCK, Judge.

Order concerning the court file:

G.S. § 7A-180 charges the Clerk of Superior Court with custody and maintenance of records of all judicial proceedings, including criminal actions. There is no statutory authority for the expunction of the files in a criminal case, except to the limited extent provided in G.S. § 90-113.14 and in G.S. § 121-5. Other statutes specifically provide for protection of court records. G.S. § 14-76 provides in pertinent part: "If any person * * * shall unlawfully and maliciously obliterate, injure, or destroy any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney or any original document whatsoever, of or belonging to any court of record, or relating to any matter, civil or criminal, begun, pending or terminated in any such court * * * every such offender shall be guilty of a misdemeanor."

The Clerk of Superior Court is a public officer, and the records he is required by law to keep are public records. G.S. Chapter 132 establishes the method for control and disposition of public records, and G.S. § 132-3 provides a penalty for wrongful disposition.

"It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar *89 the court of the power to discharge this duty." State v. Old, 271 N.C. 341, 156 S.E.2d 756. "And a court has inherent power to keep its files free from scandalous matter, or to strike such matter from the record. But a court will not annul, change, or expunge an absolutely correct record made in accordance with the requirements of law. Thus, the correct record of testimony will not be expunged from the record because it is alleged that the testimony is false and constitutes a slander against a party to the suit. An innocent person arrested through mistake has no right to have canceled a record of the arrest." 45 Am. Jur., Records and Recording Laws, § 11, p. 424.

"The custodian of a public record cannot destroy it, deface it, or give it up without authority from the same source which required it to be made. Thus, an indictment duly filed cannot be removed legitimately by anyone, including the district attorney, except for purposes of the trial thereon, or for purposes of evidence under a subpoena duces tecum or an order of court." 45 Am. Jur., supra, § 12, p. 425.

Judge McLean exceeded his authority in ordering the records in a criminal case to be permanently removed from the Clerk's office. The order dated 2 June 1972 directing the Clerk to deliver the file records to the defendant is reversed.

Order concerning the police files:

Except for the possible application of G.S. § 90-113.14, there is no statutory authority in North Carolina for the destruction of police investigative files containing fingerprints and photographs of an accused. Should it be conceded that in extraordinary circumstances a remedy is available to have such files destroyed or expunged, it would require notice, an opportunity to be heard, and findings of fact supporting the action taken. In the action taken by Judge McLean there was no notice given, no opportunity was afforded to be heard, and no findings of fact were made to support the action taken. The order dated 14 or 15 June 1972 directing the Charlotte Police Department to deliver its entire investigative file to the defendant is reversed.


Chief Judge MALLARD and Judge CAMPBELL, concur.