{
  "id": 8553803,
  "name": "STATE OF NORTH CAROLINA v. MARQUIS DeLAFAYETTE PITTS",
  "name_abbreviation": "State v. Pitts",
  "decision_date": "1971-02-03",
  "docket_number": "No. 7121SC76",
  "first_page": "355",
  "last_page": "363",
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      "cite": "160 S.E. 2d 75",
      "category": "reporters:state_regional",
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  "provenance": {
    "date_added": "2019-08-29",
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    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Graham concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MARQUIS DeLAFAYETTE PITTS"
    ],
    "opinions": [
      {
        "text": "MALLARD, Chief Judge.\nThe evidence for the State tended to show that the driveway to the loading area of the store and warehouse of the Keith-Lowery Furniture Company, a corporation, at Eighth and Liberty Streets in Winston-Salem was fenced in on 9 June 1970. There was a gate at the entrance of this driveway.\nA police officer testified that in response to a call, he went to the area about 4:00 a.m., parked his car with the lights shining into the driveway, and saw a person \u201cpoke his head out of the door and look towards me and then his head go back in.\u201d The officer thereupon used his radio to call for help. Two other officers arrived. They found the chain and the hasp which secured the gate to the driveway had been broken, and a truck was parked at the loading platform.\nA demand was made by the officers for whomever was in the building to come out, whereupon defendant Pitts and a man by the name of James Crosby came out. There was nobody else in there. The defendant Pitts was searched there at the scene, and in his pocket the officer found one of the padlocks which had been used the night before on the chain to secure the gate to the driveway.\nEntry into the main warehouse and store had been made through a window from the shipping room. This glass window had been covered 'with iron bars which had been pulled and bent in order to gain entry, and the window glass was broken. The shipping room was not a part of the main warehouse and store, and it was separated from the loading platform by sliding doors. The door to the shipping room from the main warehouse and store had a bar across it on the inside of the warehouse and store which had been removed and the door opened. The officers found in the shipping room five portable television sets, a stereo tape recorder, and an AM and FM radio combination sitting on top of one of the television sets, all of which had been removed from the main store or warehouse. When the business was closed the night before, these television sets, radio, and tape recorder were not in the shipping room.\nThe building was locked and secured the night before, the door from the main building to the shipping room was closed with a bar across it on the inside, the bars across the window were not bent, and the window was not broken. An ADT burglar alarm system was activated by L. J. Keith, Secretary-Treasurer of the Keith-Lowery Furniture Company, when he closed and locked the building on the evening of 8 June 1970 at about 6:00 p.m. In the early morning hours' of 9 June 1970, \u201cthe ADT people\u201d notified Mr. Keith that the store had been entered and shortly thereafter he went to the store.\nDefendant testified that on 8 June 1970, he, \u201cFrankie, the co-defendant,\u201d and others went to South Carolina and returned about 12:30 or 1:00 a.m. (It appears that the defendant refers to James Crosby, the other person apprehended by the officers in the building, as \u201cFrankie.\u201d) He and Frankie had been drinking and decided to go over on the eastside to a \u201cdrink house\u201d although \u201cwe stay on the west side of town.\u201d They went to a bus station and Frankie left first. Defendant stayed at the bus station for about twenty-five or thirty minutes after Frankie left and then went to Liberty Street. He went \u201cstraight up Liberty.\u201d Defendant said:\n\u201cI was whistling, you know, and singing to myself. When I got up by Keith and Lowery I was whistling and singing, and when I started by, was just about past Keith-Lowery, somebody said, \u2018pst. Hey, Dee.\u2019 I looked back and didn\u2019t see anybody. When I started to turn, I heard it again. So when I stepped back I saw Frankie. He was standing back there on what they say was the loading dock of Keith-Lowery. And he motioned for me to come here. So I went on over to the gate, opened the gate, and when I started in my foot hit something \u2014 you know, I kicked it when I was walking \u2014 and I picked it up. It was a lock. It was the same lock in question here. I picked the lock up. I walked on back there to see what he wanted. When I walked back there he was standing back there, and it was some televisions and stuff sitting out there on that loading dock. I said, \u2018Man, what are you doing back here?\u2019 you know. When I went back there they were sitting back there, and I told him to come on out, told him to come on out because the place was burglarized. And just as we turned to walk out \u2014 I guess he was going to go with me; I was going to go about my business \u2014 as we turned to walk out. I guess that is when Sergeant Kelly pulled up because we could see the lights, you know, appear. And Frankie peeped out from around there and said it was the police. And I got kind of mad then. I told him, I said, \u2018Now, here I am standing back here; I don\u2019t know what is going along, and I am going to jail with you.\u2019 And I sat down. I went on out, and it never dawned on me that I had the lock in my pocket until the officers searched me and pulled the lock out.\u201d\nThe defendant testified that he had nothing whatever to do with breaking into the place, that he did not steal anything, and that he did not go there with the intent to steal anything.\nOn cross-examination as to his criminal record, the defendant testified that he went to training school for storebreaking, had been convicted of \u201ctemporary larceny of an automobile,\u201d had been convicted of escape, and had been convicted in Federal court of the interstate transportation of a stolen motor vehicle.\nDefendant assigns as error the failure of the trial judge to allow his motion for judgment of nonsuit. The State\u2019s contention that the defendant\u2019s motion for nonsuit should not be considered because it was not renewed as required by G.S. 15-173 at the conclusion of all the evidence is overruled. G.S. 15-173.1, enacted in 1967, provides that \u201c[t]he sufficiency of the evidence of the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. 15-173 in the trial court.\u201d See also State v. Conrad, 275 N.C. 342, 168 S.E. 2d 39 (1969), and State v. Davis, 273 N.C. 349, 160 S.E. 2d 75 (1968). However, we hold that in the case before us there was ample evidence of the defendant\u2019s guilt to require its submission to the jury. In finding him guilty, it appears that the jury did not believe the defendant\u2019s version of how he happened to be at the place where this crime was committed at the time of its commission.\nAfter the defendant entered a plea of not guilty, he then filed what is denominated a \u201cpretrial motion\u201d which bears no signature and in which he moves to dismiss the charges against him on the following grounds:\n\u201c(1.)\nHeld thirteen (13) days without a probable cause hearing:\n(2.)\nDenied the right to present evidence in his behalf:\n(3.)\nHeld under excessive bond for duration of incarceration in Forsyth County Jail under aforesaid charge:\n(1A.)\nGemera v. State (See Mallory Supra) . . . .(sic) which states:\n\u2018That a person accused of a crime must be taken before a magistrate for the findings of probable cause within seventy-two (72) hours.\u2019\n(IB.)\nBy holding the Defendant thirteen (13) days, the Court denied them \u2018due process of law\u2019 and \u2018equal protection of the law.\u2019 \u2018This also is a constitutional rights violation.\u2019\n(2A.)\nDefendants constitutional rights were violated at the preliminary hearing by the Court denying the accused the right to present evidence in his own behalf.\n(3A.)\nAfter arrest and copies of the warrants had been served, the bond requirement as set by the issuing magistrate was increased by the arresting officer from One-Thousand Dollars to Five-Thousand Dollars. This was accomplished by merely marking through the amount the magistrate had typed on the warrants and writing in the altered amount. The arresting officer had no authority to change or alter, in any manner, the warrants. This was prejudicial and discriminatory with evident intent to \u2018sweat\u2019 and coerce the accused into admitting any charge that might be placed against him and/or to make sure he was \u2018punished\u2019 by keeping him in jail with a bond requirement that the arresting officer had reason to believe the accused could not raise.\n(4A.)\nDenied a timely notice of the charges pending against the accused, by denying him a copy of the \u2018Bill of Indictment.\u2019 In doing this the defendants constitutional rights were violated.\n(This has been ruled on by the U. S. Supreme Court in numerous cases) (sic)\nDenied arraignment proceedings after the \u2018Bill of Indictment,\u2019 was returned:\nHere are several rulings that specifically state that a defendant must be arraigned before trial or the trial is void and invalid.\n(1)\nWatt v. Indiana, 388 U.S. 49.\nDetention with arraignment is a time honored method for keeping the accused under the exclusive control of the police. They can operate at their leisure, the accused is wholly at their mercy. He is without the aid of counsel, or friends and is denied the protection of the magistrate. (From the time the Grand Jury returns an indictment until the defendant goes to trial, which is absolutely up to the State Solicitor you are in the hands of the police and without the protection of the court.)\nMcNab v. U. S. Tenn. (1945) (sic)\nIt has been emphasized by the courts that \u2014 Detention without arraignment is an illegal method for keeping the accused under coercion and exclusive control of the police while they build a case against the defendless (sic) defendant. These illegal methods will not be tolerated.\n(This also applies to the thirteen (13) days the defendant was held before preliminary hearing) (sic).\u201d\nThe defendant assigns as error the failure of the court to allow his motion. No authority is cited in his brief filed in this court in support of this assignment of error.\nThe record reveals that a warrant was issued for the defendant and served on him on 9 June 1970. The record also reveals that a \u201cpreliminary examination\u201d was held on 22 June 1970, probable cause was found by a district court judge, and defendant was bound over to superior court under a $5,000 bond.\nA preliminary hearing is not an essential prerequisite to the finding of a bill of indictment. State v. Hartsell, 272 N.C. 710, 158 S.E. 2d 785 (1968). A defendant who is tried on a bill of indictment, as this defendant was, is not entitled to a preliminary hearing on the bill of indictment as a matter of right. 4 Strong, N. C. Index 2d, Indictment and Warrant, \u00a7 1, p. 335. The fact that the defendant was given a preliminary hearing on a warrant thirteen days after his arrest on the warrant is not grounds for dismissal of an indictment against him which was obtained more than a month thereafter. Moreover, there is nothing in this record to indicate that a delay in holding this preliminary hearing was in any way improper or prejudicial to the defendant. See State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892 (1970).\nThe defendant contends in this unsigned and unverified motion that he was denied the right to present evidence in his behalf. There is a presumption in favor of the regularity of the proceedings in a trial court. In the case of State v. Williams, 274 N.C. 328, 163 S.E. 2d 353 (1968), it is said: \u201cAn appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\u201d There is nothing in this record to suppport this part of the motion that the defendant was denied the right to present evidence in his behalf at any time. The unsigned and unverified motion appearing in this record does not support the allegations therein.\nThe defendant\u2019s contention that the charge in the bill of indictment which was returned by the grand jury at the 27 July 1970 session of court should be dismissed because he was theretofore held under what he contends was excessive bond is without merit. Moreover, in this case an appearance bond for this defendant in the sum of $5,000 was not excessive.\nThe defendant\u2019s contention that the bond requirement set by the issuing magistrate was increased by the arresting officer is not supported by the record and is without merit. Neither is there anything in this record to indicate that there was any effort by anyone to coerce the defendant to admit anything.\nDefendant\u2019s contention that he was denied timely notice of the charges against him in the bill of indictment is not supported by the record, and no motion for a continuance on the grounds that he did not know what he was charged with was made by the defendant at the time of the trial.\nMany of the allegations appearing in the motion are redundant. We are of the opinion and so hold that Judge Armstrong correctly denied the defendant\u2019s \u201cpretrial motion\u201d to dismiss the charges against him.\nIn the trial we find no prejudicial error.\nNo error.\nJudges Parker and Graham concur.",
        "type": "majority",
        "author": "MALLARD, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Morgan, Trial Attorney Cole, and Staff Attorney Ricks for the State.",
      "Curtiss Todd for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MARQUIS DeLAFAYETTE PITTS\nNo. 7121SC76\n(Filed 3 February 1971)\n1. Burglary and Unlawful Breakings \u00a7 5; Larceny \u00a7 7\u2014 breaking and entering and larceny \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for submission to the jury on issues as to defendant\u2019s guilt of the felonies of breaking and entering a furniture store and larceny of property therefrom.\n2. Criminal Law \u00a7 164\u2014 review of nonsuit question \u2014 failure to renew motion at conclusion of evidence\nThe sufficiency of the State\u2019s evidence will be reviewed on appeal even though defendant failed to renew his motion for nonsuit at the conclusion of the evidence as required by G.S. 15-173. G.S. 15-173.1.\n3. Criminal Law \u00a7 21; Indictment and Warrant \u00a7 1\u2014 necessity for preliminary hearing\nA preliminary hearing is not an essential prerequisite to the finding of a bill of indictment, and a defendant who is tried on a bill of indictment is not entitled to a preliminary hearing as a matter of right.\n4. Criminal Law \u00a7 21; Indictment and Warrant \u00a7 1\u2014 preliminary hearing 13 days after arrest \u2014 dismissal of indictment\nThe fact that defendant was given a preliminary hearing on a warrant 13 days after his arrest on the warrant is not grounds for dismissal of an indictment obtained against him more than a month thereafter.\n5. Criminal Law \u00a7 167\u2014 presumption of regularity\nThere is a presumption in favor of the regularity of the proceedings in a trial court.\n6. Criminal Law \u00a7 21; Indictment and Warrant \u00a7 1\u2014 preliminary hearing \u2014 denial of right to present evidence\nThe record does not support defendant\u2019s contention that he was denied the right to present evidence in his own behalf at his preliminary hearing.\n7. Arrest and Bail \u00a7 9; Indictment and Warrant \u00a7 14\u2014 dismissal of indictment \u2014 excessive bail\nDefendant\u2019s contention that bill of indictment returned against him should be dismissed because he had been held under excessive bond is without merit.\n8. Arrest and Bail \u00a7 9\u2014 amount of appearance bond\nAppearance bond of $5,000 for defendant charged with felonious breaking and entering and felonious larceny was not excessive.\n9. Arrest and Bail \u00a7 10\u2014 contention that bond increased by arresting officer\nDefendant\u2019s contention that the bond requirement set by the issuing magistrate was increased by the arresting officer is unsupported by the record.\n10.Constitutional Law \u00a7 31\u2014 notice of charges against defendant\nDefendant\u2019s contention that he was denied timely notice of the charges against him in the bill of indictment is not supported by the record.\nAppeal by defendant from Armstrong, Superior Court Judge, 10 August 1970 Criminal Session of Superior Court held in Forsyth County.\nDefendant was charged in a bill of indictment, proper in form and returned by the grand jury as' a true bill at the 27 July 1970 Session of Superior Court of Forsyth County, with the three felonies of breaking and entering, larceny, and receiving stolen goods knowing them to have been stolen. He was tried on the first two counts of breaking and entering and larceny. The jury returned a verdict of \u201cguilty as charged\u201d on both counts. From an active prison sentence on the first count of breaking and entering and a suspended prison sentence on the second count of larceny, the indigent defendant appealed to the Court of Appeals.\nAttorney General Morgan, Trial Attorney Cole, and Staff Attorney Ricks for the State.\nCurtiss Todd for defendant appellant."
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