State v. Caldwell , 269 N.C. 521 ( 1967 )

153 S.E.2d 34 (1967) 269 N.C. 521

STATE
v.
Raymond CALDWELL, alias Raymond McHone.

No. 87.

Supreme Court of North Carolina.

March 1, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Floyd D. Brock, Asheville, for defendant appellant.

PARKER, Chief Justice.

Defendant's plea of guilty of assault with a deadly weapon upon Hazel Bradley, which is a lesser degree of the felonious assault charged in the indictment, and his plea of guilty to the charge in the information of carrying a concealed weapon, to wit, a pistol, are formal confessions of guilt by him before the Buncombe County Superior Court in which he was arraigned on these charges to which he pleaded guilty. State v. Crandall, 225 N.C. 148, 33 S.E.2d 861; State v. Robinson, 224 N.C. 412, 30 S.E.2d 320.

Defendant assigns as error that the court failed of its own motion to set aside his plea of guilty to a charge of carrying a concealed weapon when the State failed to produce evidence to support said charge. This assignment of error is overruled for the following reasons: (1) The record shows that defendant's plea of guilty to the information charging him with carrying a concealed weapon, to wit, a pistol, not being on his premises, was knowingly, intelligently, and voluntarily entered into, and this made it unnecessary for the State to offer evidence to prove the offense charged in the information. State v. Dye, 268 N.C. 362, 150 S.E.2d 507; 21 Am.Jur. 2d, Criminal Law, § 495; 22 C.J.S. Criminal Law § 424(4); (2) the State's evidence, considered in the light most favorable to it, shows that defendant was carrying concealed about his person and off his premises a deadly weapon, to wit, a pistol; and (3) the facts charged in the information, of which the defendant admitted himself to be guilty, constitute an offense punishable under G.S. § 14-269. State v. Perry, 265 N.C. 517, 144 S.E.2d 591; State v. Hodge and State v. White, 267 N.C. 238, 147 S.E. 2d 881.

The court heard the testimony of Hazel Bradley, her younger sister Jackie Bradley, Mrs. Etta Courtney, and R. D. Poore, a detective sergeant with the Asheville police department, all of whom were witnesses for the State. Hazel Bradley's testimony was to this effect in brief summary: She is 16 years old. She had seen defendant one time before for a period of about 30 minutes prior to the time he shot her with a pistol. She was standing in front of her house "joking and going on" with Cecil Darnell. Her younger sister and Cathy Davis were present. Defendant pulled a gun out of his back pocket and said, "I'll put a stop to all the fussing," and shot her on the left side underneath the left collar bone. The bullet knocked her down. She was hemorrhaging from her mouth. Darnell lifted her head up and said, "Try not to swallow the blood." Defendant bent over and looked at her and said, "Cecil, she's dying." She received treatment at the hospital for 14 days.

Jackie Bradley, Hazel's younger sister, testified in brief summary: Darnell took hold of Hazel and bent her arm and kissed her. Hazel said, "Cecil, I hate you." Defendant pulled out the pistol and said "Wait a minute, I'll stop the G.D. argument," and shot her.

R. D. Poore, a detective sergeant with the Asheville police department, testified on direct examination in brief summary: He investigated the shooting of Hazel Bradley. He spotted defendant on the railroad track at the back of Farmer's Federation, and about that time a freight train was leaving for Big Gap, Virginia, and defendant swung aboard the train. Defendant later told him the route he took after he got off the train. He swam the river to his house. Defendant told what had happened. He said they were sitting there talking and that Cecil Darnell and Hazel were joking and arguing back and forth, and, in a joking way, he pulled his gun out of his pocket and told them that he would stop the argument, and that the gun "went off." He said he did not mean to shoot the gun at all. He stated that he threw the pistol on a coal car when he swung on the train. Defendant did not object to this testimony, or other testimony of Poore, when it was offered. At the end of his testimony on direct examination appear the words, "EXCEPTION #4." On cross-examination of Poore by defendant, he testified, "His wife said it was her gun." Defendant, who elicited this testimony on crossexamination, has no exception to it in the record.

Mrs. Etta Courtney testified in substance: She was in the house of Hazel's mother. Jackie Bradley came running in the house and said, "Lord, have mercy, Mama, they's a man shot Hazel." Defendant and Darnell came into the living room, and defendant said, "Call the police on me, I shot this girl down in the yard, and I think she is dead." She called the police station and asked them to send an ambulance. She had never seen defendant before.

Defendant assigns as error that the court erred in allowing Poore to testify as to what the defendant said to him at the time of his arrest in the absence of evidence by the State that the defendant had been advised of his constitutional rights to remain silent and to refrain from making incriminating statements against himself. Defendant also assigns as error that the trial court erred in allowing Poore to testify as to what defendant's wife said concerning the pistol. These assignments of error are overruled.

In State v. Newell, 268 N.C. 300, 150 S.E.2d 405, the Court said: "Defendant having pleaded guilty, his appeal presents for review only whether error appears on the face of the record proper." To the same effect, State v. Darnell, 266 N.C. 640, 146 S.E.2d 800, and cases there cited. The indictment and information here are parts of the record proper. By such pleas of guilty, defendant is not precluded from claiming that the facts alleged in the indictment or information do not constitute a crime under the laws of the State. State v. Perry, 265 N.C. 517, 144 S.E.2d 591; State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642; 21 Am. Jur.2d, Criminal Law, § 495, p. 484; 22 C.J.S. Criminal Law § 424(2).

In Brisson v. Warden of Connecticut State Prison, 25 Conn.Sup. 202, 200 A.2d 250, defendant pleaded guilty to two counts of indecent assault and two counts of showing an obscene movie, and was sentenced to a term of not less than two and not more than seven years in the State's prison. Later he filed a petition alleging that he was illegally imprisoned in the State's prison for reasons set out in his "Statement of the Case and Petition for the Writ of Habeas Corpus." In the petition for the writ of habeas corpus he alleged, inter alia, that he did not have counsel at the bind-over proceedings in the Circuit Court. The Court in its opinion in the habeas corpus proceeding said:

"The plea of guilty waives any defect which is not jurisdictional. It is a confession of guilt in the manner and form as charged in the indictment. An accused by pleading guilty waives all defenses other than that the indictment charges no offense. He also waives the right to trial and the incidents thereof and the constitutional guarantees with respect to the conduct of criminal prosecutions. * * * See 4 Wharton, Criminal Law and Procedure § 1901; 5 id. § 2012; 2 Underhill, Criminal Evidence (5th Ed.) § 398; 14 Am.Jur., Criminal Law, § 272; 22 C.J.S. Criminal Law § 424; see also Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838; Weir v. United States, 92 F. 2d 634, 114 A.L.R. 481 (7th Cir.), cert. denied, 302 U.S. 761, 58 S.Ct. 368, 82 L. Ed. 590, rehearing denied 302 U.S. 781, 58 S.Ct. 479, 82 L.Ed. 603."

See also Miller v. State, 237 N.C. 29, 74 S.E.2d 513; State v. Doughtie, supra.

Defendant has not shown that there has been any violation of his fundamental constitutional rights or that he was denied the substance of a fair trial in a situation where he was not in a position to protect himself because of ignorance, duress, or other reasons for which he should not be held responsible. The record shows affirmatively that defendant, who was represented by counsel, understood the charges against him, the nature and effect of his pleas of guilty, and the maximum sentences which might lawfully be imposed upon him if he entered such pleas, and that he entered the pleas of guilty to the offenses charged voluntarily, without threats or inducements or promises, and with a full understanding of the effect and possible consequences of such pleas of guilty. Certainly, the testimony defendant elicited from Poore by cross-examination that defendant's wife said the gun was hers did not incriminate him, and did him no harm. Even if defendant had not been warned by Poore or anyone of his constitutional rights, it seems manifest under the particular facts of this case and his pleas of guilty as above set forth that he intentionally, understandingly, and voluntarily relinquished or abandoned such rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.

Defendant assigns as error that the sentences imposed by the court were excessive. This assignment of error is overruled. The punishment imposed on his plea of guilty in the assault with a deadly weapon case does not exceed the limits fixed by G.S. § 14-33. State v. Weaver, 264 N. C. 681, 142 S.E.2d 633. The punishment imposed on his plea of guilty as charged in the information does not exceed the limits fixed by G.S. § 14-269. We have held in case after case that when the punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216, and five cases of ours to the same effect there cited.

The indictment accurately includes in its allegations the offense of an assault with a deadly weapon, to wit, a pistol, an offense punishable under the laws of this State, and the information contains accurate and sufficient allegations to constitute the carrying of a concealed weapon, to wit, a pistol, about the person and off his own premises, an offense punishable by the laws of this State.

The information was initiated in the Superior Court of Buncombe County, and because of that the Superior Court of Buncombe County had jurisdiction over the offense charged in the information, a misdemeanor, by virtue of the provisions of G.S. § 7-64.

The proceeding and judgment of the court below are, therefore, free from error.

Affirmed.