State v. Sutton

94 S.E.2d 797 (1956) 244 N.C. 679

STATE
v.
Clarence SUTTON, Jr.

No. 292.

Supreme Court of North Carolina.

October 31, 1956.

Atty. Gen. George B. Patton, Asst. Atty. Gen. Samuel Behrends, Jr., for the State.

J. Harvey Turner, Kinston, for defendant.

DENNY, Justice.

The defendant in his first assignment of error challenges the right of the State to put him on trial for speeding and reckless driving on the ground that he was arrested by a policeman of the City of Kinston outside the corporate limits of the City, citing Wilson v. Mooresville, 222 N.C. 283, 22 S.E.2d 907, 911.

In the above cited case, Winborne, J., now Chief Justice, in considering the authority of a municipal police officer to make an arrest outside the corporate limits of his municipality, said: "* * * in the absence of statutory authority, the power of a sheriff or other peace officer is limited to his own county, township, or municipality, and he cannot with or without warrant make an arrest out of his own county, township or municipality, where the person to be arrested is charged with the commission of a misdemeanor. Beyond the limits of his county, township, or municipality his right to arrest for misdemeanor is no greater than that of a private citizen." G.S. § 160-21.

We concur in what was said in the above case. Even so, we know of no authority that prohibits or bars a prosecution because the arrest was unlawful.

In 15 Am.Jur., Criminal Law, section 317, page 15, et seq, it is said: "As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant." Ker v. Illinois, 119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421; State v. May, 57 Kan. 428, 46 P. 709; Commonwealth v. Tay, 170 Mass. 192, 48 N.E. 1086; People v. Miller, 235 Mich. 340, 209 N.W. 81; People v. Ostrosky, 95 Misc. 104, 160 N.Y.S. 493; 34 N.Y.Cr.R. 396; State v. McClung, 104 W.Va. 330, 140 S.E. 55, 56 A.L.R. 257. For additional authorities in support of the above view, see Annotation 56 A.L.R. 260.

It is likewise said in 22 C.J.S., Criminal Law, § 144, p. 236 et seq.: "The illegal arrest of one charged with crime is no bar to his prosecution if all other elements necessary to give a court jurisdiction to try accused are present, a conviction in such a case being unaffected by such unlawful arrest."

In the instant case, the defendant does not challenge the validity of the warrant upon which he was tried. Moreover, he concedes in his brief that in those jurisdictions where the question he is raising has been raised, the general rule is that the illegality of arrest does not affect the jurisdiction of the court. This assignment of error is overruled.

The defendant's ninth assignment of error is to the following portion of the court's charge to the jury: "Now a mere unintentional violation of a traffic law will not constitute reckless driving, but if one intentionally violates a traffic law, that constitutes reckless driving."

In another part of the charge, the court instructed the jury with respect to reckless driving in substantial compliance with what this Court said on the subject in State v. Folger, 211 N.C. 695, 191 S.E. 747, 748, in which case the Court, speaking through Connor, J., said: "A person is guilty of reckless driving (1) if he drives an automobile on a public highway in this State, carelessly and heedlessly in a willful or wanton disregard of the rights or safety of others, or (2) if he drives an automobile on a public highway in this State without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property." Nevertheless, in our opinion, this instruction did not cure the unequivocal statement complained of, to wit, "if one intentionally violates a traffic law, that constitutes reckless driving."

The defendant is entitled to a new trial on the count charging him with reckless driving, and it is so ordered.

We find no error in the trial below on the count charging the defendant with speeding in excess of 80 miles per hour. However, since the sentence on that count is to begin at the expiration of the sentence on the count charging the defendant with reckless driving, the judgment on the speeding count is set aside and the cause remanded for judgment.

Remanded for judgment on the count charging the defendant with speeding.

New trial on the count charging the defendant with reckless driving.

JOHNSON, J., not sitting.