State v. McMilliam

92 S.E.2d 205 (1956) 243 N.C. 775

STATE
v.
James McMILLIAM (McMiller).

No. 290.

Supreme Court of North Carolina.

April 18, 1956.

C. W. Beaman, Snow Hill, for defendant-appellant.

William B. Rodman, Jr., Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

PARKER, Justice.

Although the defendant was convicted of two misdemeanors for which on each count the punishment could not exceed two years, the Recorder's Court had authority to suspend the judgment on the first count for five years. G.S. § 15-200; State v. Wilson, 216 N.C. 130, 4 S.E.2d 440; State v. Gibson, 233 N.C. 691, 698, 65 S.E.2d 508; State v. McBride, 240 N.C. 619, 83 S.E.2d 488.

Ordinarily, a court, in deciding one case, will not take judicial notice of what may appear from its own records in another and distinct case, unless made part of the case under consideration, even though between the same parties or privies and in relation to the same subject matter. Com. ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191, 29 A.L.R. 626; James v. Unknown Trustees, etc., 203 Okl. 312, 220 P.2d 831, 20 A.L.R. 2d 1077; Murphy v. Citizens' Bank, 82 Ark. 131, 100 S.W. 894, 11 L.R.A., N.S., 616, 12 Ann.Cas. 535; 20 Am.Jur., Evidence, sec. 87; 31 C.J.S., Evidence, § 50(c).

It was held in Daniel v. Bellamy, 91 N.C. 78, that in a proceeding against executors for an account that a Probate Court could not take judicial notice of the fact that the probate of the will naming defendants as executors had been revoked in another proceeding in the same court.

This is far from saying that an appellate court may not take judicial notice of, and give effect to its own records in another, but interrelated, proceeding, particularly where the issues and parties are the same, or practically the same, and the interrelated case is specifically referred to in the case on appeal in the case under consideration. U. S. v. Pink, 315 U.S. 203, 216, 62 S. Ct. 552, 86 L. Ed. 796, 810; Dimmick v. Tompkins, 194 U.S. 540, 24 S. Ct. 780, 48 L. Ed. 1110; Bienville Water Supply Co. v. City of Mobile, 186 U.S. 212, 22 S. Ct. 820, 46 L. Ed. 1132; Freshman v. Atkins, 269 U.S. 121, 124, 46 S. Ct. 41, 70 L. Ed. 193, 195; West v. L. Bromm Baking Co., 166 Va. 530, 186 S.E. 291; 31 C.J.S., Evidence, § 50, pp. 625-626.

The case on appeal specifically states that Judge Fountain's judgment was based upon the evidence in the case of State v. James McMilliam and Bettie Lee McMilliam, "the companion case to this one." The case of State v. James and Bettie Lee McMilliam was argued before us the same day as the instant case by the same counsel, and is before us for decision. The evidence in this case, according to the case on appeal, was omitted to avoid repetition, and no doubt to save costs for the appellants. The evidence in State v. James and Bettie Lee McMilliam is before us in that case, and it seems clear that it was the plain intent of the counsel for the defense and the trial solicitor to make the evidence in that case a part of this case. We know of no reason why we should not take judicial notice of, and consider in the instant case the evidence in the interrelated case.

The evidence in the case of State v. James and Bettie Lee McMilliam shows the following. Upon the calling of the case for trial, and before pleading to the indictment, the defendants made a motion to suppress the State's evidence, for the reason that the State's evidence was procured by an unlawful search warrant, or secured without a search warrant, and was, therefore, incompetent as evidence. The court stated that it would reserve its ruling upon the motion, until after the State rested its case. Whereupon, the defendants entered pleas of Not Guilty.

After the jury was impanelled the State, without producing in court a valid warrant to search the home and premises of James and Bettie Lee McMilliam, offered evidence as to what was found by the search. Some of this evidence was objected to by the defendants; some was not.

When the State closed its case, the court denied the defendants' motion to suppress the State's evidence, and the defendants excepted.

The State's evidence admitted over objection was clearly incompetent, as held in State v. McMilliam, 243 N.C. ___, 92 S.E.2d 202.

When the court denied the defendants' motion to suppress the State's evidence, there is nothing to indicate that he did so, because some of the State's evidence was not objected to. It would seem that the court acted under a misapprehension of law that when Lane testified he had a search warrant issued by a Justice of the Peace in the county, it did not have to be produced in court, and nothing else appearing, the evidence obtained by the search was competent. Apparently, the defendants' counsel, having challenged all the State's evidence by his motion to suppress, and by reason of the court's reserving its ruling upon his motion to suppress, did not consider it necessary to object to each question asked by the prosecuting attorney on the ground of an unlawful search, and apparently, the court was of the same opinion by its rulings. Upon objection all of the State's evidence obtained by the search should have been excluded, because no valid search warrant was produced in court. Because of the misapprehension of the court and defendants' counsel that no objections were required to be made, this unobjected to evidence should not be considered on the question as to whether the defendant had wilfully violated the conditions of his suspended sentence. Excluding this evidence and the evidence objected to, there is no competent evidence to support the court's findings of fact that the defendant had wilfully breached the conditions of his suspended sentence.

The judgment putting the suspended sentence into effect will be vacated, and the case will be remanded for further proceedings. In the further proceedings it can be determined as to whether or not the officers had a valid warrant to search defendant's home, and, if so, whether or not evidence was found by the search showing that the defendant had wilfully violated any conditions of his suspended sentence.

Reversed and remanded.