State v. Upchurch

148 S.E.2d 259 (1966)

267 N.C. 417

STATE v. Lucious Stargal UPCHURCH.

No. 743.

Supreme Court of North Carolina.

May 25, 1966.

*260 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Charles D. Barham, Jr., and Staff Atty. Wilson B. Partin, Jr., Raleigh, for the State.

Blackwell M. Brogden, Durham, for defendant.

EMERY B. DENNY, Emergency Justice.

The defendant's first assignment of error is directed to the failure of the court below to sustain his motion to suppress the State's evidence with respect to the purported lottery tickets on the ground that such evidence was obtained under an illegal search warrant.

The trial judge, in the absence of the jury, heard evidence bearing on the circumstances under which the search warrant was issued. Officer A. L. Hight testified that he signed the affidavit under oath in connection with the procurement of the search warrant. However, Miss Sadie Lee Munford, who issued the search warrant, testified that she was assistant clerk of the recorder's court of Durham County. This witness, according to her testimony, had no recollection whatever in connection with the issuance of the search warrant in question. She did testify, however, that her signature was on the document presented to her, and further testified that usually when the officers come for a search warrant, "(a)ll I can say is they come in and ask if I will witness their signature, and I witness it." This custom on the part of this witness is not a compliance with the requirements of G.S. § 15-27. The statute 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 *261 such illegal search warrant shall be competent as evidence in the trial of any action." State v. White, 244 N.C. 73, 92 S.E.2d 404; State v. McMilliam, 243 N.C. 771, 92 S.E.2d 202.

The trial judge held the search warrant was legal and overruled the defendant's motion to suppress the evidence. The defendant excepted to this ruling.

The general rule is that where nothing appears to the contrary, there is a presumption that the requirements of the statute have been preserved. State v. Gross, 230 N.C. 734, 55 S.E.2d 517.

On this record it seems apparent to us that the assistant clerk of the recorder's court of Durham County did not observe the statutory requirements in connection with the issuance of the search warrant involved in this case. Further, it seems evident from her testimony that she does not have the slightest comprehension as to what her legal duties and responsibilities are in connection with the issuance of a search warrant.

In our opinion the court below committed error in overruling the defendant's motion to suppress the evidence obtained under the search warrant involved, and we so hold. Even so, we will not sustain the defendant's motion for judgment as of nonsuit. Had the evidence obtained under the illegal search warrant been suppressed, the State might have introduced other evidence tending to support the charges in the bill of indictment. The defendant is entitled to a new trial, and it is so ordered.

New trial.

MOORE, J., not sitting.