State v. Hill ( 1965 )

145 S.E.2d 349 (1965) 266 N.C. 107

STATE
v.
Charles E. HILL, Jr.

No. 675.

Supreme Court of North Carolina.

December 15, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis and Trial Atty. Eugene A. Smith for the State.

Boyan & Wilson, High Point, for defendant appellant.

BOBBITT, Justice.

The only exceptions in the record and case on appeal are those referred to below.

After Judge McLaughlin asked defendant (1) if he wished to cross-examine the witness and (2) if he desired to make any statement, there appear, without comment, the words, "DEFENDANT'S EXCEPTION NO. 1, DEFENDANT'S EXCEPTION NO. 3." After the judgment activating the suspended sentence, there appear, without comment, the words, "DEFENDANT'S EXCEPTION NO. 2." After the solicitor's examination of the witness (official of the municipal court), there appear, without comment, the words, "DEFENDANT'S EXCEPTION NO. 4."

Since the solicitor agreed to the record and case on appeal, we treat these exceptions as having been entered in apt time. However, they are insufficient to support defendant's assignments of error. As to Exception No. 2, no error appears on the face of the judgment; and, as to Exceptions Nos. 1, 3 and 4, nothing appears to indicate the subject and ground of defendant's objection.

This appeal, and the appeal in the Hiatt assault case, are interrelated proceedings. Hence, we take judicial notice of what our own records disclose. State v. Patton, 260 N.C. 359, 367, 132 S.E.2d 891; State v. McMilliam, 243 N.C. 775, 777, 92 S.E.2d 205. While the records show variations in name, e. g., Charles E. Hill, Jr., C. E. Hill, Jr., Charles Hill, it appears clearly from our own records and from the briefs that the defendant in this (the Rice assault) case and the defendant in the Hiatt assault case is one and the same person.

Notwithstanding the insufficiency of defendant's said exceptions, brief comment relevant to contentions made in defendant's brief seems appropriate.

Defendant is not an indigent. The record discloses affirmatively he can retain counsel when it suits his purpose to do so. He did not see fit to retain counsel to represent him at the hearing on May 5, 1965 in this (the Rice assault) case.

Defendant contends the judgment of May 5, 1965, activating the sentence of eighteen months imposed February 13, 1964, is based on convictions of defendant in the Municipal Court of the City of High Point on February 16, 1964 and on May 22, 1964.

The solicitor's bill of particulars, served on defendant on May 4, 1965, this being one day prior to the day the solicitor prayed judgment placing the suspended sentence into effect, set forth in writing the specific ground upon which he prayed for revocation of suspension, to wit, defendant's conviction on May 4, 1965 for assault. G.S. § 15-200.1; G.S. § 15-200.2. There was no occasion for the solicitor to offer evidence as to what had transpired at the same session of court before the same presiding judge in the Hiatt assault case. Judge McLaughlin had actual knowledge as well as judicial notice of the trial, verdict and judgment in the Hiatt assault case. The verdict and judgment therein fully support the finding (italicized in our preliminary statement) in Judge McLaughlin's judgment of May 5, 1965, that the defendant had violated the conditions upon which the sentence of eighteen months imposed by the judgment of February 13, 1964 was suspended. This being the sole ground on which the solicitor had prayed for revocation of suspension, the only reasonable inference is that this was the primary ground on which the suspended sentence was ordered into effect.

While evidence was offered and findings were made with reference to convictions of defendant in the Municipal Court of the City of High Point, which are not referred to in the solicitor's bill of particulars, we need not consider whether these findings would have been sufficient to support said judgment of May 5, 1965. The conviction of defendant on May 4, 1965 in the Hiatt assault case and the judgment pronounced therein were sufficient to support said judgment of May 5, 1965, putting into effect the suspended sentence, unless on appeal the judgment in the Hiatt assault case was reversed or a new trial ordered. See State v. Wilson, 216 N.C. 130, 4 S.E.2d 440; State v. Guffey, 253 N.C. 43, 116 S.E.2d 148; State v. Brown, 253 N.C. 195, 116 S.E.2d 349; State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638, and State v. Sossamon, 259 N.C. 378, 130 S.E.2d 640.

By reason of our decision today in the Hiatt assault case, the judgment pronounced therein is now final. Hence, Judge McLaughlin's judgment of May 5, 1965 putting into effect the sentence of eighteen months pronounced in this (the Rice assault) case is affirmed.

Affirmed.