State v. McCotter

217 S.E.2d 525 (1975)

288 N.C. 227

STATE of North Carolina v. Samuel McCOTTER.

No. 56.

Supreme Court of North Carolina.

August 27, 1975.

*528 Rufus L. Edmisten, Atty. Gen., R. Bruce White, Jr., Deputy Atty. Gen., and Zoro J. Guice, Jr., Asst. Atty. Gen., Raleigh, for the State.

*529 Michael P. Flanagan, New Bern, for defendant-appellee.

SHARP, Chief Justice.

In criminal practice arraignment is the formal act of calling a defendant by name to the bar of the court, informing him of the offense with which he is charged, demanding of him whether he is guilty or not guilty, and entering his plea. See Crain v. United States, 162 U.S. 625, 637-638, 16 S. Ct. 952, 956, 40 L. Ed. 1097, 1100 (1896); Ballentine's Law Dictionary (1948 Ed.); Black's Law Dictionary (Revised 4th Ed., 1968); 22 C.J.S. Criminal Law § 406 (1961).

In 1890, in Crain v. United States, supra, the Supreme Court reversed a felony conviction because the record failed to show that the accused was ever formally arraigned. Mr. Justice Harlan, speaking for six members of the Court, said: "[W]e think it may be stated to be the prevailing rule in this country and in England, at least in cases of felony, that a plea to the indictment is necessary before the trial can be properly commenced, and that, unless this fact appears affirmatively from the record, the judgment cannot be sustained." Id. at 643, 16 S. Ct. at 958, 40 L. Ed. at 1102. Mr. Justice Peckham, with whom two members of the Court concurred, wrote a dissenting opinion which was to become the law twenty-four years later when the Supreme Court overruled Crain v. United States in Garland v. Washington, 232 U.S. 642, 34 S. Ct. 456, 58 L. Ed. 772 (1914).

In Garland v. Washington, speaking for a unanimous Court, Mr. Justice Day said with reference to Crain v. United States:

"Such rulings originated in that period of English history when the accused was entitled to few rights in the presentation of his defense, when he could not be represented by counsel, nor heard upon his own oath, and when the punishment of offenses, even of a trivial character, was of a severe and often of a shocking nature. Under that system the courts were disposed to require that the technical forms and methods of procedure should be fully complied with. But with improved methods of procedure and greater privileges to the accused, any reason for such strict adherence to the mere formalities of trial would seem to have passed away, and we think that the better opinion, when applied to a situation such as now confronts us, was expressed in the dissenting opinion of Mr. Justice Peckham, speaking for the minority of the court in the Crain Case, when he said (p. 649 [34 S.Ct. 456]):

"`Here the defendant could not have been injured by an inadvertence of that nature. He ought to be held to have waived that which, under the circumstances, would have been a wholly unimportant formality. A waiver ought to be conclusively implied where the parties had proceeded as if defendant had been duly arraigned, and a formal plea of not guilty had been interposed, and where there was no objection made on account of its absence until, as in this case, the record was brought to this court for review. It would be inconsistent with the due administration of justice to permit a defendant under such circumstances to lie by, say nothing as to such an objection, and then for the first time urge it in this court.'" Id. at 646, 34 S. Ct. at 457, 58 L. Ed. at 775.

The logic of the words of Mr. Justice Peckham is inescapable, and his words are applicable in toto to this case. Today the modern trend is that "[a]rraignment may be waived by pleading not guilty or by silence, at least in all except capital cases, if the accused is fully informed as to the charge and is not otherwise prejudiced in the trial of the case by the omission of that formality." 21 Am.Jur.2d, Criminal Law § 457 (1965); 22 C.J.S. Criminal Law § 408 (1961).

The opinion of the Court of Appeals in this case made it quite clear that, in awarding defendant a new trial because of the records' failure to show his arraignment, it *530 acted under the compulsion of this Court's decision in State v. Lueders, 214 N.C. 558, 200 S.E. 22 (1938).

In Lueders the defendant was tried upon a warrant which charged him with "practicing photography without a license and without being registered with the State Board of Photographic Examiners" in violation of Chapter 155, Public Laws of 1935. The "frankly avowed" purpose of Lueders' appeal was to test the constitutionality of the law under which the warrant was drawn. The case was originally tried in the Greensboro municipal court. The defendant was convicted and appealed to the Superior Court. There, upon an agreed statement of facts, the jury returned the following verdict: "Upon the foregoing statement of agreed facts, the jury for its verdict finds the defendant guilty."

To justify avoiding the constitutional question presented, this Court noted "certain irregularities" appearing on the face of the record: (1) "[T]he defendant entered no plea in the Superior Court, where, on appeal, the cause was to be tried de novo." (2) "[T]he verdict of the jury was rendered on an agreed statement of facts, and the defendant excepts to the verdict. . . . There is no contention that the verdict is a special one." Id. at 560, 200 S.E. at 23.

With reference to the first irregularity the Court said: "In the absence of a plea to the indictment or charge, there was nothing for the jury to determine." Id. In support of this statement Chief Justice Stacy relied upon the rationale of Ashe, J., "speaking to a similar situation" in State v. Cunningham, 94 N.C. 824, 825 (1886), that where defendant filed no plea there was no issue to be submitted to the jury; that consequently the verdict returned was a nullity, and no judgment could be pronounced upon such a verdict.

In Cunningham, Justice Ashe also noted that the Superior Court had no jurisdiction of the simple assault with which defendant was charged because The Code gave exclusive original jurisdiction of offenses to Justices of the Peace during the six months following the assault.

Obviously, both the substantive and procedural facts of Lueders and Cunningham differ materially from those of this case. Further, as noted in the opinion of the Court of Appeals, the facts in each of the other cases cited in the Lueders' opinion are not comparable. See State v. McCotter, 24 N.C.App. 76, 77, 210 S.E.2d 91, 92 (1974).

In this case there can be no doubt either that defendant was fully aware of the charge against him or that he was in nowise prejudiced by the omission of a formal arraignmentif indeed it was omitted. When the case was called for trial defendant's first motion was to quash the bill of indictment because "a charge of conspiracy violated his rights under the Constitutions." At the beginning of his charge Judge Exum read the bill of indictment to the jury and then said, "To this charge the defendant has entered a plea of not guilty." Neither defendant nor his counsel arose to deny that he had entered such a plea. Under all the circumstances the judge's recitals are entitled to full faith and credit.

From beginning to end, defendant's trial was a completely adversary proceeding. While the record is silent as to defendant's arraignment, it shows that he was tried as if he had been arraigned and had entered a plea of not guilty. In such case the absence of formal arraignment does not constitute reversible error, and the statements in State v. Lueders, supra, and State v. Cunningham, supra, are nullified.

We hold that the Court of Appeals erred in ordering a new trial because of the failure of the record to show defendant's formal arraignment. Its decision, therefore, is reversed.

Because the Court of Appeals ordered a new trial upon a ground it held to be a threshold error, it considered only that one assignment. Ordinarily our review is restricted to the rulings of the Court of Appeals which are challenged in the petition *531 for certiorari or on direct appeal and brought forward in appellant's brief filed in this Court. This case, however, is unusual in that it is a criminal case in which the State appeals to this Court. For that reason we elect to consider defendant's remaining assignments of error. See State v. Muse, 280 N.C. 31, 185 S.E.2d 214 (1971). (With respect to appeals taken on or after July 1, 1975 which involve this situation, see North Carolina Rules of Appellate Procedure, Rule 16(a) (1975)).

Defendant's second assignment is that the court erred in denying his motion "for a continuance for the appointment of additional counsel." In reply to the judge's inquiry, defendant said that he was not dissatisfied with his court-appointed attorney; he did not suggest his counsel was incompetent. He merely said he felt he needed more than one attorney. In view of the uncontradicted evidence of defendant's guilt of the crime charged, there is no reason to believe that additional attorneys could have been of assistance. Obviously, defendant's real need was for a witness.

As another ground for continuance, defendant argued that he had been prejudiced by the solicitor's statement, made at the beginning of the term and in the presence of the jury, that he had known Judge Exum all his life and admired him as a person and a judge. Defendant said he felt the compliment which the solicitor paid the judge "would tie the solicitor in closer to the judge," and that "they would give more credence to the State's witnesses." The judge then explained to defendant that "the District Solicitor is not trying the case; the assistant solicitor is trying the case." Defendant's reply to that was, "He is just as bad. Whatever they are doing when they do it, they are trying to do it to me."

Upon the grounds stated, defendant's motion for a continuance was addressed to the sound discretion of the trial judge, and his ruling thereon is not subject to review absent an abuse of discretion. Continuances should not be granted unless some reason is established. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). No abuse of discretion has been shown.

Defendant's assignment that the court erred in permitting Banks to testify that he and defendant escaped from jail on May 16th is patently feckless. This statement introduced Banks' testimony that it was while they were on escape that defendant made contact with that "cold hearted young man," Chuck Lindsey, and that he told Banks he had asked Lindsey to shoot Mrs. Waldo. The purpose of this testimony was not to show that defendant had committed the crime of escape, but to explain the circumstances under which he made the incriminatory statements which Banks related from the witness stand. This assignment is obviously without merit. Equally meritless is the fifth ground upon which defendant contends his conviction should be reversed, that is, that the judge erred "in failing to quash the indictment and in failing to grant his motion for nonsuit." See State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969).

Defendant's final assignments of error raise the question, "Did the trial judge err in allowing hearsay testimony?" The answer is No. The only incompetent hearsay which appears in the record was elicited during the examination of Sergeant Windham, whofor the purpose of corroborating testimony of Swiftwas asked to relate what statements Swift had made to him concerning Mrs. Graham and defendant. He testified to one statement which was not corroborative. This testimony, which is quoted in the preliminary statement, was immediately stricken by the judge, who also instructed the jury to disregard it.

We hold that the court's specific instructions to the jury not to consider the stricken statement but to erase it from their minds, was sufficient to prevent any prejudice from it. See State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972); State v. *532 Moore, 276 N.C. 142, 171 S.E.2d 453 (1970). Furthermore, in view of the plenary competent, substantive evidence tending to establish the conspiracy charged, the admission of the stricken evidence was harmless beyond a reasonable doubt. We note that Swift herself testified she delivered to defendant a picture of Mrs. Waldo, which Mrs. Graham had given her. "Unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless." State v. Hudson, 281 N.C. 100, 106-107, 187 S.E.2d 756, 761 (1972).

After a careful examination of the record and of all defendant's assignments of error, we find no error in the trial below. The decision of the Court of Appeals is

Reversed.

EXUM, J., did not participate in the hearing or decision of this case.