State v. Cronauer

PHILLIPS, Judge.

In our opinion the case against the defendant was a nullity from its inception and the bond required in connection therewith is of no greater force and therefore must be cancelled. The jurisdictional papers in the case — (the North Carolina fugitive warrant, fugitive affidavit, and California warrant attached to it, which, in effect, constitute “the warrant” for the purpose of this case) — were insufficient to justify the defendant’s arrest, and defendant’s motion to dismiss should have been granted upon defendant submitting herself to the court’s jurisdiction.

In this state, before one can be lawfully arrested and detained under a warrant, it must allege all of the constituent elements of the crime sought to be charged. State v. Riera, 276 N.C. 361, 172 S.E. 2d 535 (1970). It must contain “a plain and concise factual statement” supporting every element of the alleged offense. G.S. 15A-924(5). Not only must the warrant, as required by rudimentary due process concepts, explicitly apprise the accused of the offense he is charged with committing so he will know how to answer and prepare his defense, but the averments also must be sufficient to enable the court to proceed to judgment, State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955), and to bar a subsequent prosecution for the same offense. State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972). When another state’s criminal law is involved, as is the case here, reasonable leeway commensurate therewith must be allowed the state in issuing and phrasing the arrest papers, and we do not hold that a fugitive warrant must be as full and detailed as a local warrant for a like offense. We do hold, however, that one charged with committing a crime elsewhere cannot be lawfully arrested and detained in this state under a warrant and its attachments that does not even identify the criminal acts that were allegedly committed.

The only information of consequence that the papers under which defendant was arrested and incarcerated conveyed to the court and the defendant was that her alleged crime violated “278 California Penal Code” and occurred “on or about the 24th day of February, 1981.” None of the papers either stated generally what acts are made criminal by Section 278 of the California Penal Code or specifically what acts defendant allegedly committed in violation of it. The child Jody Lynn Cronauer was not even mentioned in the arrest papers. Indeed, the very first intimation in the record that the crime defendant allegedly committed consisted of taking the child Jody Lynn Cronauer away from the home of her California appointed guardian is contained in the defendant’s petition to remit the bond forfeiture, which paper was filed March 5, 1982, fifty-one weeks after the warrant here was issued.

G.S. 15A-954(a)(10) requires the court on motion of the defendant to dismiss a criminal pleading that fails to charge an offense in accord with our law. Upon the warrant’s glaring deficiencies being called to the court’s attention, it was obliged to dismiss the case and permit defendant to go her way; and, for the reasons discussed below, had no authority to schedule further hearings that were totally irrelevant to the extradition proceeding that defendant was involved in or to require her to post the type of bond that was given before being released from jail. The judge’s assumption that under G.S. 15A-953 he was powerless to rule on the matter “before trial” unless the State consented thereto was mistaken. By its express terms, G.S. 15A-953 is limited to “misdemeanor prosecutions in the district court,” whereas, this case involves a felony fugitive warrant; and under G.S. 15A-954(c), a motion to dismiss a criminal pleading because it fails to charge an offense can be made at any time.

The legal foundation for the bond required of defendant was also deficient in that it was not the type of bond that the court was authorized to require in the situation that existed. Since she was not charged with committing a crime in this state, the statutes that govern the processing of such charges had no application. The statutes that applied to defendant’s situation are all contained in the Uniform Criminal Extradition Act; those particularly applicable are G.S. 15A-733, 735, 736, and 738. Since these statutes provided the only authority for arresting and detaining defendant in the first place, compliance with them was mandatory. Though the fugitive warrant stated that its authority was G.S. 15A-733 and 15A-734, its only authority was G.S. 15A-733, as G.S. 15A-734, by its terms, applies only to fugitives that are arrested without a warrant. Under G.S. 15A-733, a fugitive arrested with a warrant must be immediately taken before a judge or magistrate. Upon that being done, unless bail is allowed pursuant to G.S. 15A-736, G.S. 15A-735 requires that the judge or magistrate commit the fugitive to the county jail for a specified time, not exceeding thirty days, so as to enable the Governor to investigate and decide the extradition request. If bond is permitted, G.S. 15A-736 requires that it be “conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor of this State.” (Emphasis supplied.) G.S. 15A-738 authorizes the forfeiture of the bond if the fugitive so arrested “fails to appear and surrender himself according to the conditions of his bond.” These mandatory procedures were not followed in this case; instead, the court undertook to process the case as though defendant had been charged with committing a crime in this state.

At the outset, the order declining to act on defendant’s motion provided that “this matter may not be heard prior to trial without the consent of the State,” though defendant, of course, faced no trial in court, but was there only to await the decision of the Governor. Immediately thereafter, the “First Appearance Order” was entered, stating that defendant was eligible for release “under Chapter 15A, Article 26 —Bail,” though the statutes in that Article (G.S. 15A-531, et seq.), as G.S. 15A-534 plainly shows, authorize only the pretrial release of those charged with violating our criminal laws, and have no application to extradition proceedings. The First Appearance Order also scheduled a probable cause hearing, an anomaly neither mentioned in nor authorized by the Uniform Criminal Extradition Act —under which the Governor rather than the court decides whether extradition is justified, and it is forbidden that the guilt or innocence of the accused be inquired into “except as it may be involved in identifying the person held.” G.S. 15A-740. The Release Order, which was modified only by the $10,000 bond requirement, directed her to appear before the District Court that same day, March 26, 1981, and “at all subsequent continued dates.” And the bond was indistinguishable from the bonds that are routinely given by those facing criminal trials in this state; instead of being conditioned for her appearance at a time specified for surrender to the Governor, as G.S. 15A-736 required, it was conditioned as follows:

Conditions

(x) Pretrial Release — The conditions of this bond are that the above named defendant shall appear in the above entitled action whenever required and will at all times render himself amenable to the orders and processes of the Court. It is agreed and understood that this bond is effective and binding upon the obligors throughout all stages of the proceedings in the trial divisions of the General Court of Justice until the entry of judgment in the district court from which no appeal is taken or until the entry of judgment in the superior court.

Clearly, the bail bond given by defendant was without statutory authority. Under our law, a bail bond taken without proper authority is void and binds neither principal nor surety. State v. Bowser, 232 N.C. 414, 61 S.E. 2d 98 (1950).

The order appealed from is reversed and upon remand the District Court will enter an order remitting the remainder of defendant’s bond.

Reversed and remanded.

Chief Judge Vaughn and Judge Whichard concur.