State v. Caldwell ( 1975 )

HEDRICK, Judge.

Defendant’s first and second assignments of error are as follows:

1. “The Court below erred by overruling defendant’s motions to quash the warrant and the bill of indictment, for the reason that defendant’s constitutional rights had been violated as to his arrest, his identification, and as to being informed as to his rights.”

2. “The Judge erred by overruling defendant’s motions to quash the warrant and the bill of indictment for the reason that neither contains allegations sufficient to charge defendant with the crime of first degree rape, nor sufficient to charge defendant with the crime of second degree rape, nor to distinguish as to which crime he is charged with.”

A motion to quash lies only for a defect appearing on the face of the warrant or indictment and “does not lie unless it appears from an inspection of the warrant or indictment that no crime is charged ... or that the warrant or indictment is otherwise so defective that it will not support a judgment.” State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972) (citations omitted). In ruling on a motion to quash, the court is not permitted to consider extraneous evidence. State v. Bass, supra; State v. Cochran, 230 N.C. 523, 53 S.E. 2d 663 (1949) ; State v. Jeffries, 19 N.C. App. 516, 199 S.E. 2d 286 (1973). The allegations in the bill of indictment in the present case are in all respects sufficient to charge the defendant with second degree rape under G.S. 14-21 (b). These assignments of error are overruled.

Defendant’s third and fifth assignments of error are as follows:

8. “His Honor Erred in his ruling on the voir dire when he admitted into evidence the testimony as to the identification of defendant and refused to suppress other evidence after it had been shown that defendant had been denied his constitutional rights; and for the reason that the evidence brought out on the voir dire does not support his findings of fact, which, therefore, do not support his conclusions of law and his order.”

5. “Court below erred by admitting evidence of identification of defendant as person who committed the crime, which identification was tainted by violations of defendant’s constitutional rights and by improper presentations of defendant to state’s witness.”

The third assignment of error purports to be based on an exception to the trial judge’s conclusion that Mrs. Gragg’s in-court identification of the defendant as the man who raped her was based solely on what she observed on the afternoon of 5 June 1973 and was not tainted by any illegal out of court identification procedure. The fifth assignment of error purports to be based on six exceptions to Mrs. Gragg’s testimony after the voir dire identifying the defendant as the perpetrator of the crime.

The conclusion challenged by assignment of error 3 is clearly supported by findings of fact made by the trial judge following a voir dire hearing conducted for the specific purpose of determining the admissibility of the witness’ in-court identification. Moreover, there is plenary competent evidence in the record to support the findings of fact. Obviously, the testimony challenged by assignment of error 5 was admissible. These assignments of error have no merit.

Assignments of error 4, 6, 7, 8, 9 and 13, all relate to the admission and exclusion of testimony. We have carefully examined each of the seventeen exceptions upon which these assignments of error are based and find no error in any of the rulings challenged thereby.

Assignments of error 10 and 11 challenge the trial judge’s denial of the defendant’s motions for judgment as of nonsuit, motion to set aside the verdict, and objections to the entry of the judgment. Suffice it to say, the evidence offered at trial was sufficient to require the submission of the case to the jury on the charge set out in the bill of indictment and to support the verdict, which supports the judgment entered.

Assignment of error 12 is as follows:

“Court below erred by failing to declare a mistrial by reason of the solicitor’s prejudicial questions before the jury.”

This assignment of error is based on exceptions to two questions asked the defendant on cross-examination. Defendant’s objection to the first question was sustained, and the court instructed the jury not to consider it. Defendant’s objection to the second question was overruled. We are of the opinion that both rulings were correct. No motion for mistrial was made. Defendr ant has failed to demonstrate any error.

Assignments of error 14, 15, 16 and 17 relate to the court’s instructions to the jury. We have examined each exception upon which these assignments are based and find and hold that the trial judge fairly, correctly, and adequately instructed the jury in compliance with G.S. 1-180. Defendant has failed to demonstrate any prejudicial error in the charge.

The defendant had a fair trial, free from prejudicial error.

No error.

Judges Morris and Arnold concur.