State v. Midgett

174 S.E.2d 124 (1970) 8 N.C. App. 230

STATE of North Carolina
v.
Larry Donald MIDGETT, Bradley Johnson, Donnie Blount, Martin Wayne Collins, Lonnie Gibbs, Van Gray Gibbs, Henry Vanderbilt Johnson, Jr., Sammy Lee Bryant, Felton Gibbs, Alvin Spencer, Clarence Coward and Benjamin Phelps.

No. 702SC54.

Court of Appeals of North Carolina.

May 27, 1970. Appeal Dismissed June 24, 1970.

Atty. Gen. Robert Morgan, by Staff Atty. Burley B. Mitchell, Jr., Raleigh, for the State.

Chambers, Stein, Ferguson & Lanning, by James E. Ferguson, II, Charlotte, for defendants-appellants.

CAMPBELL, Judge.

It is settled law in North Carolina that the imposition in a given case of a greater sentence in the Superior Court Division upon trial de novo than was imposed in the District Court Division is constitutionally permissible. State v. Spencer, 7 N.C.App. 282, 172 S.E.2d 280 (1970), (affirmed, North Carolina Supreme Court, 173 S.E.2d 765, 13 May 1970). This assignment of error has no merit.

The motion to quash the supplemental jury venire is directed to the sound discretion of the trial court, and in the absence of evidence of abuse of discretion will not be disturbed on appeal. State v. Oxentine, 270 N.C. 412, 154 S.E.2d 529 (1967). The record discloses the following:

"MR. FERGUSON: Now, your Honor, I have a motion to quash the Order for supplementary jurors. The defendants through their counsel make a motion to quash the Order for supplementary jurors and to dismiss the panel which was drawn from Dare County on the grounds that black persons were systematically and arbitrarily excluded from the jury panel and that the population of Dare County does not reflect the racial makeup of Hyde County.

THE COURT: RULING: Upon the making of the motion the court asked defendants' counsel if he wishes to offer further evidence in support of motion and the court was advised by defendants' counsel that he did not at this time and a request was made for a delay to procure evidence in support of his motion.

The court finds that the Order for supplementary jurors was entered on May 24, 1969, after conferring with defendants' counsel and the solicitor, and a copy of the Order was immediately sent to the defendants' counsel, therefore, the request to delay the proceedings is denied. The motion to quash is ordered ruled denied.

MR. FERGUSON: The defendants except."

This assignment of error is without merit.

On a motion of nonsuit, the evidence is taken in the light most favorable to the State. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). In that light, the evidence tends to show that the defendants entered the office of the secretary to the principal and told her "they were going to interrupt us that day." They locked the secretary out of her office, moved furniture about, scattered papers and dumped some books on the floor. She, Mr. Hunter and Mr. Williams were drawn or kept away from their jobs or classes by this action. School was dismissed because of the "presence of non-students" (both in and about the school and in the principal's office), disruption and "commotion," which included the occupying of the principal's office by the defendants and their operation of the bells which normally were used to signal change of classes and other scheduled events. None of the defendants had permission to occupy the office and none made any attempt to allow the proper officials to enter the office.

In State v. Wiggins, 272 N.C. 147, 154, 158 S.E.2d 37, 43 (1967), the elements of a violation of G.S. § 14-273 were enumerated:

"Giving the words of G.S. § 14-273 their plain and ordinary meaning, it is apparent that the elements of the offense punishable under this statute are: (1) Some act or course of conduct by the defendant, within or without the school; (2) an actual, material interference with, frustration of or confusion in, part or all of the program of a public or private school for the instruction or training of students enrolled therein and in attendance thereon, resulting from such act or conduct; and (3) the purpose or intent on the part of the defendant that his act or conduct have that effect. * * *"

We feel the evidence amply makes out all of the elements of the misdemeanor defined in G.S. § 14-273.

The portion of the charge of the trial court cited by the defendants as improperly raising the question of conspiracy was not prejudicial to the defendants. State v. Donnell, 202 N.C. 782, 164 S.E. 352 (1932). The evidence showed that each defendant was present in the locked office and participated in the conduct complained of. They said they were going to interrupt the operation of the school, and they did.

We find no error.

Affirmed.

PARKER and VAUGHN, JJ., concur.