{ "id": 8553342, "name": "STATE OF NORTH CAROLINA v. JOSEPH D. DIAZ", "name_abbreviation": "State v. Diaz", "decision_date": "1972-06-28", "docket_number": "No. 728SC196", "first_page": "730", "last_page": "733", "citations": [ { "type": "official", "cite": "14 N.C. App. 730" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "154 S.E. 2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568523 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0416-01" ] }, { "cite": "157 S.E. 2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565233 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0521-01" ] }, { "cite": "90 S.Ct. 1387", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "25 L.Ed. 2d 665", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "397 U.S. 1050", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12105856, 12105921, 12106051, 12105892, 12106029, 12105905, 12105937, 12105885, 12106011, 12105981 ], "opinion_index": 0, "case_paths": [ "/us/397/1050-01", "/us/397/1050-05", "/us/397/1050-10", "/us/397/1050-03", "/us/397/1050-09", "/us/397/1050-04", "/us/397/1050-06", "/us/397/1050-02", "/us/397/1050-08", "/us/397/1050-07" ] }, { "cite": "169 S.E. 2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559188 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0550-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "150 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561037 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0214-01" ] }, { "cite": "171 S.E. 2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "7 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548480 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/7/0129-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] } ], "analysis": { "cardinality": 414, "char_count": 7239, "ocr_confidence": 0.544, "pagerank": { "raw": 2.8260423191032394e-07, "percentile": 0.8387726465905927 }, "sha256": "6db771600308a09d6a2161e98fc15992130c43a505d5184e825334db06faa9c2", "simhash": "1:0673d4eccc06ad7b", "word_count": 1250 }, "last_updated": "2023-07-14T22:58:48.650385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Graham concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH D. DIAZ" ], "opinions": [ { "text": "VAUGHN, Judge.\nDefendant assigns as error the denial of his motion in arrest of judgment for defects and irregularities appearing upon the face of the record with regard to the manner in which the preliminary hearing was conducted. We find no merit in this contention. The record shows that defendant was tried on a proper indictment duly returned by the Grand Jury as a true bill. A preliminary hearing is not an essential prerequisite to a bill of indictment. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972). In any event, a motion in arrest of judgment is not the proper method to attack the preliminary hearing, because a judgment in a criminal prosecution may be arrested only when some fatal error or defect appears on the face of the record proper. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970) ; State v. Ray, 7 N.C. App. 129, 171 S.E. 2d 202 (1969). Defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment since the evidence is not a part of the record proper. State v. Morgan, 268 N.C. 214, 150 S.E. 2d 377 (1966). After a thorough review of the record in the case at bar, we find no fatal error or defect on its face. Moreover appellant has failed to show that the assigned errors were prejudicial to his rights and that a different result, but for the errors, would have likely ensued. State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972).\nDefendant contends the court erred in limiting the defendant\u2019s cross-examination of the arresting officers. We find no prejudicial error in the court\u2019s rulings. It is true that a party has a right to wide latitude in cross-examining witnesses. However, the matter and the nature of the cross-examination is within the discretion of the trial court and its ruling should not be disturbed except when prejudicial error is disclosed. State v. Ross, 275 N.C. 550, 169 S.E. 2d 875 (1969) ; cert. den. 397 U.S. 1050, 25 L.Ed. 2d 665, 90 S.Ct. 1387. The record clearly shows that after the objections to the questions were sustained there was no attempt to get into the record what the witness would have said. Where the court sustains an objection to evidence, and the record fails to show what the evidence would have been, prejudice is not shown and the exclusion of such evidence cannot be held prejudicial. State v. Kirby, supra; State v. Price, 271 N.C. 521, 157 S.E. 2d 127 (1967). We also note that some of trial counsel\u2019s questions were clearly argumentative and repetitious.\nDefendant contends that the court erred in its instruction to the jury as to the definition or meaning of \u201cbeyond a reasonable doubt.\u201d The court in defining the phrase, \u201cbeyond a reasonable doubt,\u201d said, \u201cit is meant that they (the jury) must be fully satisfied or entirely convinced or satisfied to a moral certainty of the truth of the charge.\u201d Defendant contends that the court should have instructed the jury that they must be, \u201csatisfied to a moral certainty of the truth of the defendant\u2019s guilt of the charge.\u201d When the entire charge is read, it encompasses this concept and there is no prejudicial error in the charge. Taken as a whole it is similar to the charge upheld in State v. Britt, 270 N.C. 416, 154 S.E. 2d 519 (1967).\nWe have carefully considered each of defendant\u2019s assignments of error as argued in the brief filed by his able counsel. We find no prejudicial error.\nNo error.\nJudges Morris and Graham concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Assistant Attorney General Claude W. Harris for the State.", "White, Allen, Hooten & Hines by Thomas J. White III for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH D. DIAZ\nNo. 728SC196\n(Filed 28 June 1972)\n1. Criminal Law \u00a7 21 \u2014 preliminary hearing \u2014 indictment\nA preliminary hearing is not an essential prerequisite to a bill of indictment.\n2. Criminal Law \u00a7\u00a7 21, 127\u2014 preliminary hearing \u2014 motion in arrest of judgment\nA motion in arrest of judgment is not the proper method to attack the preliminary hearing, since a judgment in a criminal prosecution may be arrested only when some fatal error or defect appears on the face of the record proper.\n3. Criminal Law \u00a7 127 \u2014 motion in arrest of judgment-evidence\nDefects which appear only by aid of the evidence cannot be the subject of a motion in arrest of judgment, since the evidence is not a part of the record proper.\n4. Criminal Law \u00a7 127 \u2014 motion in arrest of judgment \u2014 defects in preliminary hearing\nThe trial court did not err in the denial of defendant\u2019s motion in arrest of judgment for alleged defects and irregularities in the preliminary hearing, where defendant was tried on a proper bill of indictment, no error appears on the face of the record proper, and defendant has failed to show he was prejudiced by the alleged errors.\n5. Criminal Law \u00a7 88 \u2014 cross-examination \u2014 discretion of court\nWhile a party has a wide latitude in cross-examining witnesses, the matter and nature of the cross-examination is within the discretion of the trial court, and its ruling should not be disturbed except when prejudicial error is disclosed.\n6. Criminal Law \u00a7 169 \u2014 exclusion of evidence \u2014 absence of excluded evidence in record\nThe exclusion of evidence cannot be held prejudicial where the record fails to show what the excluded evidence would have been.\n7. Criminal Law \u00a7 112 \u2014 instructions \u2014 definition of \u201cbeyond a reasonable doubt\u201d\nThe trial court did not err in instructing the jury that it must be \u201csatisfied to a moral certainty of the truth of the charge,\u201d rather than that the jury must be \u201csatisfied to a moral certainty of the truth of defendant\u2019s guilt of the charge,\u201d the charge as a whole having encompassed such concept.\nAppeal by defendant from Bailey, Judge, 16 August 1971 Criminal Session of Lenoir Superior Court.\nThe defendant was tried upon an indictment, proper in form, charging the felony of illegal possession of narcotic drugs, to wit heroin, in violation of G.S. 90-88. The evidence of the State tended to show the following: On 5 July 1971 at about 10:30 p.m. two law enforcement officers, Shepard and Howard, observed the defendant walking on the grounds of the Holiday Inn in Kinston, North Carolina. The officers stopped their car and Officer Howard noticed that the defendant had something in his hand. Defendant backed away in the well-lighted lot and when he got close to some bushes dropped what he had in his hand. Officer Shepard picked up what the defendant dropped and found 3 bundles, each containing a number of smaller bundles of a powdery substance. Defendant had walked off, but was stopped again and placed under arrest. It was stipulated that the bundles found by Officer Shepard were found to contain heroin.\nThe defendant testified in his own behalf and his testimony tended to show the following: He lived in Jacksonville, North Carolina. He had come to Kinston to go to a club on Queen Street. He denied ever seeing the packets of heroin before. He did not have them in his possession that night or any other time.\nThe jury returned a verdict of guilty as charged. From judgment imposing a prison sentence of five years, defendant gave notice of appeal. Defendant\u2019s retained counsel was allowed to withdraw and the court appointed present counsel to perfect this appeal.\nAttorney General Robert Morgan by Assistant Attorney General Claude W. Harris for the State.\nWhite, Allen, Hooten & Hines by Thomas J. White III for defendant appellant." }, "file_name": "0730-01", "first_page_order": 756, "last_page_order": 759 }