State v. Wall , 273 N.C. 130 ( 1968 )

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159 S.E.2d 317 (1968) 273 N.C. 130
STATE of North Carolina
v.
Robert Lee WALL.
No. 659.
Supreme Court of North Carolina.
February 28, 1968.
*318 Atty. Gen. T. W. Bruton and Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Edward K. Washington, High Point, for defendant.

PER CURIAM.

It is not contended that the witness who appeared before the grand jury was disqualified from giving testimony as a matter of law. Thus, the sole question presented by this appeal is: Did the trial court err in allowing defendant's motion to quash on the ground that the indictment was returned solely on hearsay evidence?

In the case of State v. Levy, 200 N.C. 586, 158 S.E. 94, the defendant moved to quash the indictment on the ground that the grand jury had returned the indictment as a true bill "upon testimony which was incompetent because based entirely upon hearsay and that no competent evidence had been heard by the grand jury." The defendant tendered witnesses who had testified before the grand jury to prove this contention, and the trial judge refused to hear testimony to this effect on the motion to quash, but stated that he would permit defendant to prove during the trial that the bill had been returned "upon improper and insufficient evidence."

Finding no error in the trial below, this Court stated:

"* * * So the main contention of the defendant is this: not merely that incompetent evidence was considered, but that no competent evidence was heard by the grand jury, and that, for the latter reason, the bill should have been quashed.

* * * * * *

"The cases to which we have referred are not authority for the defendant's position. Nor are we inclined to accept his view, although it has the support of writers whose opinions are entitled to great respect. As Underhill remarked, ``It would be intolerable in practice to confine grand juries to the technical rules of evidence.' Criminal Evidence (3d ed.) § 71. The suggested practice would hinder the trial and result in useless delay. * * *"

This case was quoted from with approval by Lake, J., speaking for the Court in the case of State v. Turner, 268 N.C. 225, 150 S.E.2d 406. See also Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397.

By authority of the cases herein cited, the action of the trial judge in allowing the motion to quash is

Reversed.

HUSKINS, J., took no part in the consideration or decision of this case.