State v. Sawyer ( 1950 )

62 S.E.2d 515 (1950) 233 N.C. 76

STATE
v.
SAWYER.

No. 650.

Supreme Court of North Carolina.

December 13, 1950.

Harry McMullan, Atty. Gen., T.W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Raleigh, Member of the Atty. Gen's Staff, for the State.

Lester G. Carter, Jr., Fayetteville, for defendant, appellant.

ERVIN, Justice.

Under Rule 21, a motion in arrest of judgment for insufficiency of an indictment or warrant may be made for the first time in the Supreme Court. State v. Harris, 229 N.C. 413, 50 S.E.2d 1; State v. Jones, 218 N.C. 734, 12 S.E.2d 292; State v. Ballangee, 191 N.C. 700, 132 S.E. 795; State v. Stephens, 170 N.C. 745, 87 S.E. 131; State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L.R.A. 179; State v. Caldwell, 112 N.C. 854, 16 S.E. 1010; State v. Roanoke Railroad & Lumber Co., 109 N.C. 860, 13 S.E. 719; State v. Watkins, 101 N.C. 702, 8 S.E. 346.

A motion in arrest of judgment can be based only on matters which appear on the face of the record, or on matters which should, but do not, appear on the face of the record. State v. Mitchem, 188 N.C. 608, 125 S.E. 190; State v. Shemwell, 180 N.C. 718, 104 S.E. 885. This being so, the objection that the defendant is given an incorrect name in the warrant is not presented by his motion in arrest, for such objection can be supported only by facts dehors the record.

Indeed, the defendant waived this objection by pleading not guilty and going to trial without giving the court his correct name under the rule that ordinarily an objection to the misnomer of the accused in an indictment or warrant must be raised by a plea in abatement before pleading to the merits. State v. Ellis, 200 N.C. 77, 156 S.E. 157; State v. McCollum, 181 N.C. 584, 107 S.E. 309; 22 C.J.S., Criminal Law, § 427. Furthermore, the name Saw-yer and Sawyer are so nearly alike as to bring them within the rule of iden sonans. State v. Vincent, 222 N.C. 543, 23 S.E.2d 832; State v. Gibson, 221 N.C. 252, 20 S.E.2d 51; State v. Reynolds, 212 N.C. 37, 192 S.E. 871; State v. Donnell, 202 N.C. 782, 164 S.E. 352; State v. Hare, 95 N.C. 682; State v. Patterson, 24 N.C. 346, 38 Am.Dec. 699.

It is settled law that an indictment or warrant is fatally defective, and subject to a motion in arrest of judgment unless it describes the accused with sufficient certainty to identify him as the person charged with the crime alleged. State v. Finch, 218 N.C. 511, 11 S.E.2d 547; State v. McCollum, supra; State v. Phelps, 65 N.C. 450. The name of the defendant does not appear in the portion of the warrant which charges the violation of the Alcoholic Beverage Control Act of 1937. The charging part of the warrant, i.e., the complaint, simply alleges that "the above" committed the offenses specified. For these reasons, we find nothing to commend in the phraseology employed by the draftsman of the pleading. Nevertheless, we are constrained to hold the warrant adequate to overcome the present objection of the defendant. The complaint refers to the title of the action, and the warrant refers to the complaint. When the title, the complaint, and the warrant are considered together as parts of the same instrument and proceeding, they point out the defendant with due certainty as the person committing the offenses alleged. State v. Poythress, 174 N.C. 809, 93 S.E. 919.

The trial court instructed the jury accurately on the law of the case, summed up the evidence of the witnesses correctly, and stated the contentions of the prosecution and defense fairly. As a consequence, the exceptions to the charge are untenable.

Inasmuch as the trial in the court below was free from legal error, the judgment will not be disturbed.

No error.