{ "id": 12132716, "name": "STATE OF NORTH CAROLINA v. DONALD CLAYTON MADRY, JR.", "name_abbreviation": "State v. Madry", "decision_date": "2000-11-21", "docket_number": "No. COA99-1271", "first_page": "600", "last_page": "603", "citations": [ { "type": "official", "cite": "140 N.C. App. 600" } ], "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": "158 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "583-84" }, { "page": "583" } ], "opinion_index": 0 }, { "cite": "272 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573592 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "493-94" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0491-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "216 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553608 ], "year": 1975, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0486-01" ] }, { "cite": "426 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "414-15" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524673 ], "year": 1993, "pin_cites": [ { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0136-01" ] }, { "cite": "308 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "300", "parenthetical": "\"[A] person who is present and aids and abets another in the commission of a criminal offense is as guilty as the principal perpetrator of the crime.\"" } ], "opinion_index": 0 }, { "cite": "309 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762533 ], "year": 1983, "pin_cites": [ { "page": "567", "parenthetical": "\"[A] person who is present and aids and abets another in the commission of a criminal offense is as guilty as the principal perpetrator of the crime.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0559-01" ] }, { "cite": "478 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "492" }, { "page": "492", "parenthetical": "1996" } ], "opinion_index": 0 }, { "cite": "345 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53843 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "58" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0043-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 113-294", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(cl)" }, { "page": "(cl)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 424, "char_count": 8217, "ocr_confidence": 0.775, "pagerank": { "raw": 2.1946634601696003e-07, "percentile": 0.774434725731114 }, "sha256": "15a4afc7b0cab9d582dcb71c39b4be6bd444980a78e93273b965836ec7286f3c", "simhash": "1:0d35557da0ef4651", "word_count": 1366 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD CLAYTON MADRY, JR." ], "opinions": [ { "text": "LEWIS, Judge.\nThe only issue before us is the validity of the warrant allegedly charging defendant with the crime of taking bear with bait, in violation of N.C. Gen. Stat. \u00a7 113-294(cl). Defendant was convicted in district court but appealed to the superior court for a trial de novo. Defendant then filed a motion to dismiss the warrant as insufficient, which motion was granted. The State now appeals.\nTo be sufficient, any charging instrument, whether an indictment, arrest warrant, or otherwise, must allege all essential elements of the crime sought to be charged. N.C. Gen. Stat. \u00a7 15A-924(a)(5) (1999). The purpose of this requirement is to ensure that a defendant may adequately prepare his defense and be able to plead double jeopardy if he is again tried for the same offense. State v. Westbrooks, 345 N.C. 43, 58, 478 S.E.2d 483, 492 (1996). We conclude that the warrant here was insufficient because it did not adequately apprise defendant of the specific offense with which he was being charged.\nThe arrest warrant here charged defendant as follows:\n[T]he defendant named above unlawfully, willfully did aid and abet Richard G. McCormack by taking bear with use and aid of bait.\nUltimately, the \u201caid and abet\u201d language is what renders this warrant flawed. Specifically, the warrant charges that defendant aided and abetted Richard G. McCormack, but it does not allege the underlying offense that Mr. McCormack committed. The warrant does cite section 113-294(cl) as the statute defendant allegedly violated. That statute makes it a misdemeanor to \u201ctake[], possess[], transport^, sell[], possess[] for sale, or buy[] any bear or bear part.\u201d N.C. Gen. Stat. \u00a7 113-294(cl). Significantly, under the statute, each of the above acts constitutes a separate offense. Id. The warrant here does not denominate which offense or offenses Mr. McCormack committed.\nIn this context, the phrase \u201cby taking bear with use and aid of bait\u201d is purely descriptive; it simply describes the way in which defendant aided and abetted Mr. McCormack. Under an aiding and abetting theory, defendant would be guilty of the offense committed by Mr. McCormack. See State v. Polk, 309 N.C. 559, 567, 308 S.E.2d 296, 300 (1983) (\u201c[A] person who is present and aids and abets another in the commission of a criminal offense is as guilty as the principal perpetrator of the crime.\u201d). But here, we do not know what that offense is. As stated earlier, the statute cited in the warrant criminalizes not only the taking of bear but also the sale, possession, transportation, and buying of bear as well. Perhaps defendant took the bear by bait and then Mr. McCormack sold it. If so, under the aiding and abetting theory alleged in the warrant, defendant would be guilty of the sale of bear \u2014 not the taking of it. On the other hand, perhaps defendant took the bear with bait and then Mr. McCormack transported it. If so, under the aiding and abetting theory, the alleged offense again would be the transportation of the bear \u2014 not the taking of it. Or perhaps both Mr. McCormack and defendant played a role in taking the bear. If so, then the charged offense would be the taking of the bear. Quite simply, we just do not know because the warrant does not specifically state the underlying offense allegedly committed by Mr. McCormack for which defendant would be on trial under the aiding and abetting theory.\nThe State responds that we should simply ignore the \u201caiding and abetting\u201d language. Because aiding and abetting is not a substantive offense but just a theory of criminal liability, allegations of aiding and abetting are not required in an indictment or warrant. State v. Ainsworth, 109 N.C. App. 136, 142-43, 426 S.E.2d 410, 414-15 (1993). And because it is not required, the State argues the language may be treated as surplusage. We completely agree; the \u201caiding and abetting\u201d language could be treated as surplusage here. Cf. Westbrooks, 345 N.C. at 57, 478 S.E.2d at 492 (1996) (\u201cThus, the allegation of the indictment that defendant acted in concert... is an allegation beyond the essential elements of the crime charged and is, therefore, sur-plusage.\u201d). However, were we to do so, the warrant simply makes no sense. All that would be left is the charge that \u201cthe defendant named above unlawfully, willfully did by taking bear with use and aid of bait.\u201d This no more saves the warrant than leaving the \u201caiding and abetting\u201d language in. The warrant is flawed either way. Accordingly, we conclude the superior court judge properly dismissed the warrant.\nWe note that the State amended the warrant before trial in the district court pursuant to N.C. Gen. Stat. \u00a7 15A-922(f). We need not consider this amendment, however, because the original warrant was fatally deficient. \u201c[W]here the warrant does not contain sufficient information to notify the defendant of the nature of the crime charged and fails to contain even a defective statement of the offense, it is fatally defective and cannot be cured by amendment.\u201d State v. Bohannon, 26 N.C. App. 486, 488, 216 S.E.2d 424, 425 (1975). Instead of issuing an amendment, the State should have filed a statement of charges to rectify the situation. N.C. Gen. Stat. \u00a7 15A-922(b). For whatever reason, the State chose not to do so.\nFinally, we point out that the result of our disposition is that the statute of limitations has now run and defendant may not be re-tried under a valid warrant or statement of charges. N.C. Gen. Stat. \u00a7 15-1 prescribes a two-year statute of limitations for all misdemeanors except \u201cmalicious misdemeanors.\u201d The alleged offense here occurred on 15 November 1997, well over two years ago. Our Supreme Court has affirmatively stated that this statutory period is tolled upon the issuance of a valid warrant. State v. Hundley, 272 N.C. 491, 493-94, 158 S.E.2d 582, 583-84 (1968). The issuance of a void or invalid warrant, however, does not toll the statute. Id. Our legislature has set forth a limited exception to this two-year period: defective indictments may be refiled within one year of dismissal. N.C. Gen. Stat. \u00a7 15-1. But this exception only applies to indictments; no such exception exists for warrants. Hundley, 272 N.C. at 493, 158 S.E.2d at 583. Accordingly, any attempt to issue a new criminal pleading now would be barred by the two-year statute of limitations.\nAffirmed.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.", "The Robinson Law Firm, by Leslie S. Robinson, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD CLAYTON MADRY, JR.\nNo. COA99-1271\n(Filed 21 November 2000)\n1. Hunting and Fishing\u2014 taking bear with bait \u2014 aiding and abetting \u2014 insufficient allegations\nA warrant for taking bear with bait was properly dismissed where the warrant charged that defendant \u201cdid aid and abet Richard G. McCormack by taking bear with the use and aid of bait\u201d because the phrase \u201cby taking bear with use and aid of bait\u201d simply describes the way in which defendant aided and abetted McCormack, and does not specifically state the underlying offense committed by McCormack for which defendant would be on trial under the aiding and abetting theory. The aiding and abetting language cannot be treated as surplusage because the warrant as worded would then make no sense. N.C.G.S. \u00a7 113-294(cl).\n2. Indictment and Information\u2014 defective warrant\u2014 amended \u2014 fatal error not cured\nA fatally defective warrant charging a misdemeanor was not cured by an amendment in district court. Instead of issuing an amendment, the State should have filed a statement of charges.\n3. Statute of Limitations\u2014 misdemeanor \u2014 invalid warrant\nFurther prosecution for taking bear with bait was barred by the statute of limitations where the warrant was dismissed as ineffective. While the statute of limitations may be tolled upon the issuance of a valid warrant, a void or invalid warrant does not toll the statute and, while defective indictments may be refiled within one year, no such exception exists for warrants.\nAppeal by the State from order entered 30 June 1999 by Judge Dennis J. Winner in Tyrrell County Superior Court. Heard in the Court of Appeals 20 September 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.\nThe Robinson Law Firm, by Leslie S. Robinson, for defendant-appellee." }, "file_name": "0600-01", "first_page_order": 632, "last_page_order": 635 }