State v. Jeffries

HEDRICK, Judge.

Defendant’s two assignments of error present only the question of whether the trial judge erred in denying her motions to quash the warrant and to arrest the judgment. A motion to quash challenges the sufficiency of a bill of indictment or warrant. 4 Strong, N. C. Index 2d, Indictment and Warrant, § 14, pp. 359-60. “ ‘A motion in arrest of judgment is one made after verdict and to prevent entry of judgment, and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record.’ State v. McCollum, 216 N.C. 737, 6 S.E. 2d 503.” State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970).

In her brief defendant states that she does not contend that Section 21-49(1) of the Raleigh City Code (the ordinance under which defendant is charged) is unconstitutional. However, she does contend that “the policy, practice, and procedure carried on in the City of Raleigh for the enforcement of this parking law, as well as all others, constitutes invidious discrimination prohibited by both the North Carolina and United States Constitutions.”

“While a motion to quash is an appropriate method of testing the sufficiency of the bill of indictment to charge a criminal offense, it lies only for a defect appearing on the face of the warrant or indictment. State v. McBane, 276 N.C. 60, 170 S.E. 2d 913 (1969); State v. Turner, 170 N.C. 701, 86 S.E. 1019 (1915). ‘The court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence aliunde the record, the motion must be denied.’ State v. Cochran, 230 N.C. 523, 53 S.E. 2d 663 (1949); State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972).” State v. Springer, 283 N.C. 627, 197 S.E. 2d 530 (1973).

In State v. Underwood, 283 N.C. 154, 162, 195 S.E. 2d 489 (1973), Justice Sharp wrote:

“If an ordinance or statute upon which a warrant or indictment is based ‘is generally constitutional and for some circumstance peculiar to the situation of accused is unconstitutional that is a matter which is properly triable under the general issue or a plea of not guilty.’ 16 C.J.S. Constitutional Law § 96(b), at 344 (1956). Upon a motion to quash the judge may not hear evidence tending to show that the ordinance, valid on its face, is being enforced in a manner which deprives the defendant of his constitutional rights, find the facts, and determine the constitutional question upon his findings. In a criminal prosecution in which the defendant contests his guilt he may not ‘waive his constitutional right of trial by jury. . . . [T] he determinative facts cannot be referred to the decision of the court even by consent — they must be found by the jury.’ State v. Muse, 219 N.C. 226, 227, 13 S.E. 2d 229 (1941) (citations omitted). See also State v. Hill, 209 N.C. 53, 182 S.E. 716 (1935).”

Clearly, the defendant attempted to establish by evidence aliunde the record that the ordinance was unconstitutionally applied to her by the “policy, practice, and procedure” of the Raleigh Police Department. Judge Hobgood properly disregarded such extraneous evidence in denying the motion to quash. No defect appears on the warrant or in the record proper barring this prosecution or the entry of judgment.

Affirmed.

Chief Judge Brock and Judge Vaughn concur in the result.