{
  "id": 8552909,
  "name": "STATE OF NORTH CAROLINA v. STEVEN DOUGLAS BENTLEY",
  "name_abbreviation": "State v. Bentley",
  "decision_date": "1968-06-12",
  "docket_number": "",
  "first_page": "365",
  "last_page": "369",
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    "name": "North Carolina Court of Appeals"
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      "cite": "271 N.C. 646",
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    {
      "cite": "269 N.C. 223",
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  "analysis": {
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  "last_updated": "2023-07-14T18:11:01.747951+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and Britt, JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. STEVEN DOUGLAS BENTLEY."
    ],
    "opinions": [
      {
        "text": "Morris, J.\nDefendant assigns as error the court\u2019s ruling that his out-of-court statements to police officers at the police station were voluntarily made.\nThe record discloses that when the State attempted to introduce a standard police waiver form signed by the defendant acknowledging that he had been properly advised of his constitutional rights before interrogation, objection was made by defendant\u2019s counsel. Counsel then requested that the voluntariness of defendant\u2019s statements be determined on voir dire. The trial judge excused the jury and heard evidence bearing directly on the question of whether the defendant\u2019s statements to the police were voluntary. At the conclusion of this evidence he found the following facts: That defendant had been fully advised of his constitutional rights; that statements made to the police were freely and voluntarily made after he had been warned of his rights to remain silent, the fact that any statement might be used against him, his right to counsel and that the State would appoint counsel if he could not afford one, and of his right to discontinue giving information at any point without presence of counsel.\nThe findings of fact by the trial court upon the voir dire as to the voluntariness of defendant\u2019s statements are conclusive on review if supported by competent evidence. State v. Childs, 269 N.C. 307, 152 S.E. 2d 453. Whether such facts support the conclusions of the court as to voluntariness is a question of law reviewable on appeal. State v. Fuqua, 269 N.C. 223, 152 S.E. 2d 68. The trial court properly excused the jury and heard evidence on voir dire as to whether defendant\u2019s statements were voluntary, giving defendant opportunity to testify and offer evidence. We have carefully reviewed the testimony taken on voir dire and find that there was ample competent evidence to support the findings of fact made by the trial judge and we further find that these findings of fact support the conclusion of the court that defendant\u2019s statements were voluntarily made.\nDefendant contends that the jury was permitted to view the waiver form and that this was prejudicial error. There is nothing in the record to indicate that the jury was handed this document. No objection or exception was made. This Court will not consider questions not properly presented by objection in the record and exceptions duly entered. This assignment of error is overruled.\nDefendant\u2019s assignment of error no. 2 is taken to the action of the trial judge in allowing the State to recall Sergeant Lewis E. Robinson of the Mecklenburg County Police Department to give additional evidence after he had previously testified. Defendant contends that this action was so highly irregular and prejudicial to him as to require a new trial.\nThis Court stated in State v. Brown, 1 N.C. App. 145, 160 S.E. 2d 508, that the trial judge has wide discretionary power with respect to the introduction of further evidence at the trial. In Brown, supra, the question involved the introduction of additional evidence after both the State and the defendant had concluded their arguments to the jury. There, we held the trial judge acted within the limits of his discretion in allowing the evidence to be introduced. We see no abuse of discretion in the instant case wherein the trial judge before arguments of counsel to the jury, permitted the recalling of the same witness.\nDefendant\u2019s assignment of error no. 3 is taken to the argument of the solicitor to the jury when he said, \u201cThe defendant Bentley was out there robbing Mr. Mundy . . .\u201d\n\u201cArguments to a jury should be fair and based on the evidence or on that which may be properly inferred from the case. This is said in 88 C.J.S. Trial \u00a7 1.69, at 337-38: \u2018However, the liberty of argument must not degenerate into license, and the trial judge should not permit counsel in his argument to indulge in vulgarities; he should, therefore, refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives, or from making any statements or reflections which have no place in argument but are only calculated to cause prejudice.\u2019 \u201d State v. Miller, 271 N.C. 646, 157 S.E. 2d 335.\nWe feel, however, that under the facts of this case the remark by the solicitor in his argument as above quoted was not so grossly unfair as to mislead and prejudice the jury. The general tenor of the trial reflects that this was merely a \u201cslip of the. tongue\u201d and not such unfairness as to warrant a new trial.\nDefendant assigns as error the failure of the court to appoint counsel to represent him at his preliminary hearing.\nParker, C.J., in an exhaustive opinion, held in the case of Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740, that a preliminary hearing is not prerequisite to the finding of an indictment in this State nor a critical stage of the proceeding, and a defendant may waive the hearing and consent to be bound over to the superior court to await grand jury action without forfeiting any defense or right available to him; therefore, the denial of defendant\u2019s request for counsel at the hearing does not deprive defendant of any constitutional right. We cannot see how the facts of this case come outside the rule set out in Gasque, supra. This assignment of error is overruled.\nAll other assignments of error have been carefully considered and are overruled. The evidence offered by the State is amply sufficient to support the verdict. In the trial below we find\nNo error.\nCampbell and Britt, JJ., concur.",
        "type": "majority",
        "author": "Morris, J."
      }
    ],
    "attorneys": [
      "T. W. Bruton, Attorney General by Bernard A. Harrell, Assistant Attorney General, for the State.",
      "Don Davis for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. STEVEN DOUGLAS BENTLEY.\n(Filed 12 June 1968.)\n1. Criminal Law \u00a7 76\u2014\nFindings of fact by the trial court upon the voir dire as to the volun-tariness of defendant\u2019s statements are conclusive on appeal if supported by competent evidence; whether such facts support the conclusions of the court as to voluntariness is a question of law reviewable on appeal.\n2. Same; Criminal Law \u00a7 162\u2014\nDefendant\u2019s contention that he was prejudiced in that the jury was permitted to view a police waiver form signed by him acknowledging that he was advised of his rights is not considered by the Court of Appeals, the record not indicating that the jury was given the document and defendant failing properly to present the question by objection and exception duly entered in the record.\n3. Criminal Caw \u00a7 97\u2014\nThere is no abuse of discretion where the trial judge, prior to arguments of counsel to the jury, permits the State to recall a witness for the purpose of introducing additional evidence.\n4. Criminal Caw \u00a7 102\u2014\nIn a prosecution for uttering a forged check, a remark by the solicitor in his argument to the jury that \u201cthe defendant was out there robbing\u201d the prosecuting witness is held a mere lapsus linguce and is not, under the facts of the ease, so grossly unfair as to mislead and prejudice the jury.\n5. Constitutional Caw \u00a7 32; Criminal Caw \u00a7 21\u2014\nThe failure to grant defendant\u2019s request for counsel at his preliminary hearing did not deprive him of any constitutional right.\nAppeal by defendant from Snepp, J., at 23 October 1967, Schedule \u201cC\u201d Criminal Session of MECKLENBURG.\nThis is a criminal action prosecuted on two separate bills of indictment charging the defendant with (1) felonious breaking and entering of the premises of Carolox Company, Inc., and the felonious larceny of certain property from the premises, etc.; and (2) uttering a forged instrument drawn on the Carolox Company, Inc., Davidson Road, Davidson, North Carolina, made payable to Jerry F. Abernathy in the sum of $48.15.\nThe defendant, through his court-appointed counsel, entered pleas of not guilty to both bills of indictment and the trial proceeded before a jury.\nThe facts necessary for a determination of this case are: The Carolox Company, Inc., a manufacturer of heavy machine tools and electronic equipment, located on Griffith Street in Davidson, North Carolina, was broken into on the night of 23 May 1967. When the building was opened the following morning, personnel in charge found that there were certain items missing from the business office. Among the missing items was approximately $15.00 in cash that had been kept in a lock box. Also missing were 412 unsigned payroll checks and 423 general account checks drawn on the account of the Carolox Company, Inc. Approximately three months later, on 4 August 1967, a check identified as one of the missing payroll checks was negotiated by the defendant to Mr. Carl S. Mundy, who owned and operated a retail grocery business in Mecklenburg County. At the time this check was negotiated, it bore the signatures of Mr. G. S. Beard and Mr. Harold T. Cava-naugh, neither of whom are employees of the Carolox Company, Inc. The check was made payable to Jerry F. Abernathy and endorsed in his name by the defendant.\nAt the conclusion of the evidence for the State the court granted defendant\u2019s motion of nonsuit on the charges of felonious breaking and entering and larceny, but denied the motion as to uttering a forged instrument. Defendant was subsequently found guilty by the jury of uttering a forged instrument. He was sentenced to imprisonment under the jurisdiction of the State Department of Corrections for not less than five nor more than seven years.\nFrom the judgment entered, defendant appealed.\nT. W. Bruton, Attorney General by Bernard A. Harrell, Assistant Attorney General, for the State.\nDon Davis for defendant appellant."
  },
  "file_name": "0365-01",
  "first_page_order": 387,
  "last_page_order": 391
}
