State v. Keith , 266 N.C. 263 ( 1966 )

145 S.E.2d 841 (1966) 266 N.C. 263

STATE
v.
Laburn Leon KEITH.

No. 497.

Supreme Court of North Carolina.

January 14, 1966.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen., Harrison Lewis, Trial Atty. Henry T. Rosser, Raleigh, for the State.

Charles O'H. Grimes, Raleigh, for defendant.

DENNY, Chief Justice.

The appellant assigns as error the ruling of the court below that the confession allegedly made by defendant Keith to Sergeant Stephenson of the Raleigh Police Department, was voluntary.

This is an unusual case in some respects. Defendant Keith does not contend that his confession was coerced or otherwise improperly obtained; on the contrary, he contends he made no confession, and so testified in his own behalf in the trial below; he further contends that he was detained for six hours and was never informed of any charge against him.

The State's evidence, however, is to the effect that Sergeant Stephenson informed Keith that he was not under arrest; that he was free to leave any time he so desired but that he (Stephenson) wanted to talk to him about a safe job at Auto Parts; that anything he told him could be used either for or against him; that if he wanted to do so he could call his attorney or any friend or relative; that he did not have to tell him anything; that no threats of bodily harm would be made against him if he did not talk. In response to the suggestion that he might call his attorney or a friend or relative, defendant stated that he did not want to call anyone.

There was ample evidence to support the ruling of the court below that the statements made by Keith were voluntary.

In State v. Fain, 216 N.C. 157, 4 S.E.2d 319, Stacy, C. J., said: "It is the established procedure with us that the competency of a confession is a preliminary question for the trial court, State v. Andrew, 61 N.C. 205, to be determined in the manner pointed out in State v. Whitener, 191 N.C. 659, 132 S.E. 603, and that the court's ruling thereon will not be disturbed, if supported by any competent evidence. State v. Moore, 210 N.C. 686, 188 S.E. 421. * * *"

A confession is voluntary only if in fact it was voluntarily made. When a defendant objects to the introduction of a purported confession, it is the duty of the trial judge to hear the evidence bearing on the voluntariness of such purported confession in the absence of the jury. This was done in the instant case. The defendant did not testify on the voir dire or offer any evidence tending to show the purported confession was involuntary or improperly obtained. Defendant's counsel, however, did cross-examine Sergeant Stephenson at length.

In State v. Elam, 263 N.C. 273, 139 S.E.2d 601, Parker, J., speaking for the Court, said:

"Defendant's contention that Elam's extrajudicial confessions were admitted without a proper preliminary inquiry is overruled. When sergeant Bunn was asked by the prosecuting officer for the State what conversation he had with Elam, Elam's lawyer objected and the trial judge sent the jury to their room. Whereupon, Elam's lawyer, Mr. Purser, cross-examined and recross-examined Bunn at length in respect to the circumstances surrounding the making of the extrajudicial confessions of guilt by Elam. After this was finished, there is nothing in the record to indicate that defendant desired to offer any evidence in rebuttal of Bunn's testimony. Certainly, there is nothing to indicate that the trial judge refused to hear any evidence by defendant in rebuttal. ``It was not the duty of the court to call upon the defendant to offer evidence.' State v. Smith, 213 N.C. 299, 195 S.E. 819. * * *"

No error has been made to appear in the admission of the defendant's confession. State v. Whitener, 191 N.C. 659, 132 S.E. 603; State v. Manning, 221 N.C. 70, 18 S.E.2d 821; State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Elam, supra.

The defendant relies on the case of State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, and contends that the court below failed to find the facts in regard to the circumstances surrounding the making of the incriminating statements in order that the conclusion as to whether the confession was free and voluntary might be reviewed on appeal.

In the instant case, there was no conflicting testimony offered on the voir dire as there was in such hearing in the Barnes case. Defendant's contention is without merit on the record before us and we so hold.

The defendant assigns as error the trial court's denial of his motion to dismiss the action on the ground there is no evidence that the warrant issued by the City Court of Raleigh was ever read to or served on him.

The State's evidence tends to show that the warrant was issued on 21 March 1965, read to and served on the defendant Keith sometime after 1:00 p. m. on the day it was issued, and that later that same afternoon Keith waived a preliminary hearing in the City Court of Raleigh. Defendant testified that he did not recall whether or not he had a preliminary hearing.

The record further tends to show that the Judge of the City Court of Raleigh found probable cause and fixed bond in the sum of $1,000 on 21 January 1965. The bill of indictment was returned at the February 1965 Special Session of the Superior Court of Wake County. Judge Bickett appointed counsel to represent the defendant on 12 February 1965. Defendant was not tried until 1 March 1965 Conflict Criminal Session of the Superior Court of Wake County.

In 22 C.J.S. Criminal Law § 327, page 838, it is said:

"Objections to irregularities or defects in the issuance, form, or execution of a warrant of arrest, which do not go to the jurisdiction, should be taken on the preliminary examination before the magistrate, and if accused fails to object at that time, enters a general appearance, and makes a plea to the charge, such irregularities will be held to be cured or the objections thereto will be held to be waived."

The record herein discloses that the defendant did not move to dismiss on the ground specified in his motion until after the verdict of the jury had been returned.

In the case of State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642, it is said:

"Any defect in the process by which a defendant is brought into court may be waived by him by appearing before the court having jurisdiction of the case. State v. Turner, supra (170 N.C. 701, 86 S.E. 1019); State v. Cale, supra (150 N.C. 805, 63 S.E. 958). The defendant may waive a constitutional right relating to a mere matter of practice or procedure. Miller v. State, 237 N.C. 29, 74 S.E.2d 513. If the law were otherwise, a defendant could take his chance of acquittal on a trial on the merits and, if convicted, contend that he was not in court."

In State v. Sutton, 244 N.C. 679, 94 S.E.2d 797, the defendant challenged the right of the State to put him on trial in the Superior Court on warrants for speeding and reckless driving, on the ground that he had been arrested outside the corporate limits of the City of Kinston by a policeman of the City of Kinston, citing Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907. This Court said:

"We concur in what was said in the above case. Even so, we know of no authority that prohibits or bars a prosecution because the arrest was unlawful.

"In 15 Am.Jur., Criminal Law, section 317, page 15, et seq., it is said: ``As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.' Ker v. People of State of Illinois, 119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421; State v. May, 57 Kan. 428, 46 P. 709; Commonwealth v. Tay, 170 Mass. 192, 48 N.E. 1086; People v. Miller, 235 Mich. 340, 209 N.W. 81; People v. Ostrosky, 95 Misc. 104, 160 N.Y.S. 493, 34 N.Y. Cr.R. 396; State v. McClung, 104 W. Va. 330, 140 S.E. 55, 56 A.L.R. 257. For additional authorities in support of the above view, see Annotation 56 A.L. R. 260.

"It is likewise said in 22 C.J.S., Criminal Law, § 144, p. 236 et seq.: ``The illegal arrest of one charged with crime is no bar to his prosecution if all other elements necessary to give a court jurisdiction to try accused are present, a conviction in such a case being unaffected by such unlawful arrest.'"

The defendant herein makes no attack upon the warrant upon which he was bound over to the Superior Court, or to the validity of the bill of indictment upon which he was tried.

The defendant expressly abandons all other assignments of error.

In our opinion, the defendant has had a fair trial, free from prejudicial error, and we so hold.

No error.