State v. Bohannon , 26 N.C. App. 486 ( 1975 )

216 S.E.2d 424 (1975) 26 N.C. App. 486

STATE of North Carolina
v.
Thomas Edward BOHANNON.

No. 7521SC229.

Court of Appeals of North Carolina.

July 2, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Jerry J. Rutledge, Raleigh, for the State.

Carol L. Teeter, Winston-Salem, for defendant.

CLARK, Judge.

This appeal presents the following question: Was the affidavit supporting the warrant for arrest so defective that it was void on its face and not subject to amendment by the District Court prior to trial?

The defendant contends that the warrant, though issued on 2 January 1972, was so fatally defective that it could not be cured by amendment and did not toll the statute of limitations, and that more than two years having expired since the date of the alleged offense, the prosecution was barred.

The defendant relies on the following quotation from 4 Strong, N.C. Index 2d, Indictment and Warrant, § 12 at 357 (1968): "Where a warrant . . . is fatally defective in failing to charge an essential element of the offense, the defect cannot be cured by amendment." Strong cites the following cases in support of this rule: State v. Tarlton, 208 N.C. 734, 182 S.E. 481 (1935); State v. Cole, 202 N.C. 592, 163 S.E. 594 (1932); State v. Haigler, 14 N.C.App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972). An examination of these cases reveals that both the Haigler and Cole cases involved not warrants but indictments which had been returned by a grand jury; and that Tarlton held that the Superior Court had no authority to amend a warrant after verdict where a material element of the offense is omitted.

Nor does State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963) support defendant's position. The Sossamon case held that a warrant charging the operation of a motor vehicle on the public highway after his driver's license had been revoked or suspended fails to charge a violation of G.S. § 20-28 since the statute required that the operation occur while or during the period of suspension, and that the defective warrant did not support the verdict, which the court arrested. Sossamon did not involve an amendment before trial as did State v. Moore, 247 N.C. 368, 101 S.E.2d 26 (1957), where the warrant charged the operation of a motor vehicle "after his operator's permit having been permanently revoked." The Superior Court allowed the State to amend by adding, "Said license having been permanently revoked by the Department of Motor Vehicles by reason of the defendant having been convicted in the Municipal Court . . . on the 24th day of March, 1950." The Supreme Court found no error and stated: "``under our practice, our courts have authority to amend warrants defective in form and even in substance; Provided the amended warrant does not change the nature of the offense intended to be charged in the original warrant.'" State v. Moore, supra, at 370, 101 S.E.2d at 28. See also State v. McHone, 243 N.C. 231, 90 S.E.2d 536 (1955); State v. Brown, 225 N.C. 22, 33 S.E.2d 121 (1945).

But where the warrant does not contain sufficient information to notify the defendant of the nature of the crime charged and fails to contain even a defective statement of the offense, it is fatally defective and cannot be cured by amendment. State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951); State v. Williams, 1 N.C.App. 312, 161 S.E.2d 198 (1968).

In this case the original warrant contained a defective statement of the offense charged, adequately notified the defendant of the offense charged, and, therefore, was properly cured by amendment before trial. Upon issuance of the warrant on 2 January 1972 the statute of limitations was tolled.

The other assignments of error having been abandoned, we find

No error.

BRITT and ARNOLD, JJ., concur.