State v. Hodge , 267 N.C. 238 ( 1966 )

147 S.E.2d 881 (1966) 267 N.C. 238

STATE
v.
Junior Rex HODGE.
STATE
v.
Bobby Junior WHITE.

Nos. 578, 579.

Supreme Court of North Carolina.

May 4, 1966.

Atty. Gen., T. W. Bruton and Staff Atty., Andrew A. Vanore, Jr., Raleigh, for the State.

Kesler & Seay, Thomas W. Seay, Jr., Salisbury, for Junior Rex Hodge, defendant appellant.

Graham M. Carlton, Salisbury, for Bobby Junior White, defendant appellant.

PER CURIAM:

Defendants do not contend that the attorneys who represented them in the Superior Court were incompetent; neither do they contend that they were unduly influenced or misinformed when they waived the finding of a bill by the grand jury and entered their pleas of guilty to the charge contained in the information. On the contrary, upon the oral argument, counsel expressly repudiated any such contention; nor have defendants asserted their innocence of the charge. In requiring that their sentences be appealed to this Court, defendants are merely taking advantage of the unlimited right of appeal which this State permits. State v. Darnell, 266 N.C. 640, 146 S.E.2d 800. Court-appointed counsel, ingrained with the profession's traditional loyalty to a client, have done their best to make bricks without straw. They argue (1) that counsel had insufficient time to prepare defendants' defense and (2) that defendants, while waiving the finding of a bill of indictment, did not waive its return.

The four hours during which Messrs. Eudy and Burke had access to their court-appointed clients most probably would not have been sufficient time in which to prepare a contested case for trial. Prima facie, however, it was sufficient time for defendants to decide whether they should enter a plea or contest the charges. They themselves had had two and a half months to consider the matter. The record is devoid of any suggestion that defendants needed more time either to prepare a defense or to present evidence in mitigation of punishment. They did not ask for a continuance, nor do they now contend that one would have profited them. Counsel for a defendant "caught in the act" or against whom the State has an "air-tight case" has no duty to advise him against entering a plea of guilty merely to delay the day of judgment. Frequently such advice would be a great disservice to the defendant, for trial judges are often inclined to reward the truth, which they consider the best evidence of repentance. Furthermore, time spent in jail awaiting trial will not be credited on the sentence imposed and need not be considered by the judge in fixing his punishment. State v. Weaver, 264 N.C. 681, 142 S.E.2d 633.

The statute which authorizes trial upon an information in lieu of indictment (G.S. § 15-140.1) provides that a "defendant may waive the finding and return into court of a bill of indictment when represented by counsel and when both the defendant and his counsel sign a written waiver of indictment." The statement, which each defendant and his counsel signed, recited, "I do hereby waive the finding of a bill of indictment. * * *" Because the statement was not, "I do hereby waive the finding and return * * *," defendants now contend that the court was without jurisdiction to proceed to judgment against them. The State concedes that "it is the action of the (grand) jury in publicly returning the bill into court as true, and the recording or filing it among the records, that makes it effectual." State v. Cox, 28 N.C. 440, 446. As a practical matter, there is no necessity of publicizing to an accused a finding contained in an information and in a waiver of indictment to which he has just affixed his signature. The equivalent of a "return," however, was actually had when the judge, in open court, interrogated each defendant as to his understanding of, and assent to, the information and waiver he had signed. We hold that the waiver of the finding of a bill of indictment also includes the waiver of the return.

Each defendant having entered a plea of guilty to a valid information charging the felony of nonburglarious breaking, this appeal brings up for review only the question whether the facts charged constitute an offense punishable under the laws and constitution. State v. Perry, 265 N.C. 517, 144 S.E.2d 591. Defendants' pleas established a violation of G.S. § 14-54, the punishment of which may be a maximum of 10 years. It is noted that a violation of G.S. § 14-89.1 (one of the charges contained in the warrants) subjects an offender to a sentence of from 10 years to life imprisonment.

All defendants' assignments of error are overruled, and the judgment below is

Affirmed.

MOORE, J., not sitting.