State v. White

92 S.E.2d 404 (1956)

244 N.C. 73

STATE v. Almeta WHITE.

No. 76.

Supreme Court of North Carolina.

May 2, 1956.

*405 J. Wayland Sledge, New Bern, for defendant, appellant.

William B. Rodman, Jr., Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

DEVIN, Justice.

The statute, G.S. § 15-27, provides that a search warrant shall not be signed or issued by any officer without first requiring the complainant or other person "to sign an affidavit under oath and examining said person or complainant in regard thereto"; and further that "no facts discovered by reason of the issuance of such illegal search warrant shall be competent as evidence in the trial of any action."

In the instant case no affidavit to support the issuance of the search warrant appears in the record, nor does it appear that the constable signed an affidavit under oath, though he testified he was sworn by the justice of the peace in whose name the warrant was issued, and stated to him under oath his information and the location of the premises.

The search warrant was not issued in accordance with the requisite provisions of the statute, and hence the evidence discovered by reason thereof was by the statute rendered incompetent and was improperly admitted. State v. McMilliam, N.C., 92 S.E.2d 202, 205.

There was no motion for judgment of nonsuit. The defendant is entitled to a new trial, and it is so ordered.

New trial.

JOHNSON, J., took no part in the consideration or decision of this case.