State v. Locklear , 42 N.C. App. 486 ( 1979 )

256 S.E.2d 830 (1979) 42 N.C. App. 486

STATE of North Carolina
v.
Lacy LOCKLEAR, Defendant and John Lee, Surety.

No. 7818SC903.

Court of Appeals of North Carolina.

July 31, 1979.

Douglas, Ravenel, Hardy, Crihfield & Bullock by John W. Hardy, Greensboro, for Guilford County Board of Education, appellant.

William C. Ray and James Lee Knight, Greensboro, for surety, appellee.

PARKER, Judge.

The appellant first assigns error to the trial court's conclusion that the surety showed extraordinary cause for remission of the judgment. G.S. 15A-544(h) provides that "[f]or extraordinary cause shown, the court which has entered judgment upon a forfeiture of a bond may, after execution, remit the judgment in whole or in part and order the clerk to refund such amounts as the court considers appropriate." The trial court concluded upon uncontroverted evidence that "the efforts made by Mr. John Lee amount to extraordinary cause shown under the provisions of Chapter 15A, Section 544 of the General Statutes of the State of North Carolina." We cannot say that the court was in error in so concluding. The efforts of the bondsman, while not dramatic, did result in the principal's detention on the charge for which the bond had secured the principal's appearance. The goal of the bonding system is the production of the defendant, not increased revenues for the county school fund, see Watts, The Pretrial Criminal Procedure Act: The Subchapter on Custody, 10 W.F.L.Rev. 417, 461-62 (1974), and in this case the surety's efforts led directly to achieving that goal. Appellant's first assignment of error is overruled.

The appellant contends in its second assignment of error that the remission provision in G.S. 15A-544(h) is unconstitutional in that it violates the North Carolina Constitution, Article IX, Section 7 which reads:

County and school fund. All moneys, stocks, bonds, and other property belonging to the county school fund, and the clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.

The record does not indicate that this constitutional contention was raised or passed upon in the trial court, and as a general rule appellate court will not pass upon a constitutional question which was not raised and considered in the court from which appeal was taken. Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E.2d 435 (1971); Brice v. Moore, 30 N.C.App. 365, 226 S.E.2d 882 (1976); Carpenter v. Carpenter, 25 N.C.App. 235, 212 S.E.2d 911 (1975). Moreover, we find appellant's argument unpersuasive. G.S. 15A-544(h) is not in violation of the above quoted constitutional provision. The statute does not permit a diversion of funds as was proscribed in Shore v. Edmisten, Atty. General, 290 N.C. 628, 227 S.E.2d 553 (1976). G.S. 15A-544(h) provides for remission of forfeitures as opposed to diversion to other purposes. The statute merely dictates the manner in which the amounts constituting "the clear proceeds of forfeitures" are to be determined. This assignment of error is overruled. The judgment appealed from is

Affirmed.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.