State v. Sadler

CAMPBELL, Judge.

The defendant moved for arrest of judgment on the grounds that he was tried in the Superior Court of Vance County-under an unauthorized amendment to the original warrant. The original warrant in pertinent part read, “N. C. Department of Correction, Vance County Subsidiary #4080.” The warrant was read and amended in open court to charge the defendant with escape from “North Carolina Dept, of Correction in Gran-ville County, Number 4080.” The defendant alleges that the Vance County Superior Court lacked jurisdiction to try the defendant on the amended warrant because it charged a different offense from that for which he was convicted in the lower court.

It is true that the court has “no power to permit the original warrant to be amended so as to charge an entirely different crime from the one on which the defendant was convicted in the lower court.” State v. Davis, 261 N.C. 655, 135 S.E. 2d 663 (1964). State v. Cooke, 246 N.C. 518, 98 S.E. 2d 885 (1957). The warrant in the case at bar could have more clearly stated that “Number 4080” was a Vance County Subsidiary of the North Carolina Department of Correction and that the defendant, while a member of said unit, was working in Granville County when the alleged escape took place. However, the statutory offense charged, escape from a North Carolina correctional unit in violation of G.S. 148-45, was never altered. The amendment did not charge an entirely different offense and hence is not invalid. State v. Brown, 225 N.C. 22, 33 S.E. 2d 121 (1945); State v. Mills, 181 N.C. 530, 106 S.E. 677 (1921).

The defendant asserts that Vance County was not the proper venue for this trial. However, any objection the defendant may have had as to venue has been waived. G.S. 15-134 provides:

“[I]n the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county in which by the indictment it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement, . .

It has long been established that a defendant waives any objection to improper venue by not pleading in abatement. State v. Ray, 209 N.C. 772, 184 S.E. 886 (1936).

Defendant also assigned as error the same grounds on which he made his motion for arrest of judgment, i.e., that the warrant was amended to charge a different offense. We find this contention without merit. We also find that there was no fatal variance between the warrant and the evidence elicited at trial.

The defendant contends that the trial court erred in the admission of testimony concerning unidentified records which had not been introduced into the record, and in asking questions relative thereto. Defendant cites State v. Vaillancourt, 268 N.C. 705, 151 S.E. 2d 610 (1966). In Vaillancourt, supra, the court, in dealing with the issue of lawful custody, held that while it was error in a prosecution for escape to permit a prison official to testify over objection as to the contents of the commitment instead of introducing the commitment itself, that where the defendant himself testified that at the time of his escape, he was serving a life sentence, defendant’s testimony cures the error. In the case at bar appellant has not shown that he has been prejudiced in any way by the testimony from unintroduced records all of which concerned Sadler’s past record of disciplinary charges.

“Mere technical error will not entitle defendant to a new trial; it is necessary that error be material and prejudicial and amount to a denial of some substantial right. Whether technical error is prejudicial is to be determined upon the basis of whether there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” State v. Garnett, 4 N.C. App. 367, 167 S.E. 2d 63 (1969).

The questions put forward by the trial judge did not compound the error. Rather, he was able to elicit the fact that defendant had been found not guilty of the disciplinary charges referred to and therefore to instruct the jury to disregard testimony relative to such charges.

. . It is entirely proper, and sometimes necessary, that they [trial judges] ask questions of a witness so that the ‘truth, the whole truth, and nothing but the truth’ be laid before the jury. . . Eekhout v. Cole, 135 N.C. 583, 47 S.E. 655 (1904).

Defendant also contends that the trial judge committed error in failing to charge that the escape actually occurred in Granville County and that the defendant would therefore not be guilty of the offense charged in the warrant. In State v. Outerbridge, 82 N.C. 619 (1880), the court stated:

“No witness having testified that the place where the deceased was killed was in the county of Bertie, the prisoner’s counsel prayed for the following instructions, to-wit: ‘It is the duty of the State to satisfy the jury beyond a reasonable doubt that the offense was committed in manner and form as charged in the bill of indictment, and as there is no evidence before the jury that Peter Freeman was shot, assaulted or died in Bertie County, it is their duty to acquit.’ The Court declined to give the instruction, holding that under section 70, chapter 33, of Battle’s Revisal, the objection could only be raised for the benefit of the prisoner by plea in abatement.

Since the act of 1844 it has not been necessary on the trial of an indictment, either for felony or misdemeanor, for the State to prove the offense to have been committed in the county where the defendant is indicted. The act is very broad in its terms, and the language used is ‘that in the prosecution of all offenses it shall be deemed and taken as true that the offense was committed in the county in which, by the indictment, it is alleged to have taken place, unless the defendant shall deny the same by plea in abatement.’ . . . There was no error in the refusal to give this instruction.”

Defendant’s contention has no merit. He was at all relevant times assigned to Vance County Unit No. 4080 and was at all times under the supervision of guards from the Vance County Unit. It was from the custody of the Vance County Unit while at the Enterprise Meat Processing Plant that defendant escaped and defendant’s guilt or innocence is not changed by the fact that the Enterprise Meat Processing Plant is actually in Gran-ville County. There was no error in the judge’s charge.

We have examined the other assignments of error brought forward by the defendant and find them without merit.

No error.

Judges Parker and Vaughn concur.