{ "id": 8552271, "name": "STATE OF NORTH CAROLINA v. ROBERT LINDSEY STALLINGS", "name_abbreviation": "State v. Stallings", "decision_date": "1969-04-02", "docket_number": "No. 6910SC145", "first_page": "184", "last_page": "192", "citations": [ { "type": "official", "cite": "4 N.C. App. 184" } ], "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": "77 S.E. 2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "698" } ], "opinion_index": 0 }, { "cite": "238 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603394 ], "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0241-01" ] }, { "cite": "148 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560291 ], "opinion_index": 0, "case_paths": [ "/nc/267/0653-01" ] }, { "cite": "158 S.E. 2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572647 ], "opinion_index": 0, "case_paths": [ "/nc/272/0271-01" ] }, { "cite": "153 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566629 ], "opinion_index": 0, "case_paths": [ "/nc/269/0761-01" ] }, { "cite": "153 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564474 ], "opinion_index": 0, "case_paths": [ "/nc/269/0507-01" ] }, { "cite": "153 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565542 ], "opinion_index": 0, "case_paths": [ "/nc/270/0103-01" ] }, { "cite": "153 S.E. 2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565103 ], "opinion_index": 0, "case_paths": [ "/nc/270/0035-01" ] }, { "cite": "73 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626518 ], "opinion_index": 0, "case_paths": [ "/nc/236/0499-01" ] }, { "cite": "146 S.E. 2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561754 ], "opinion_index": 0, "case_paths": [ "/nc/266/0589-01" ] } ], "analysis": { "cardinality": 648, "char_count": 18304, "ocr_confidence": 0.585, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33424188051118037 }, "sha256": "ef77c6d5c57e8d7e263b4af50fd3451d33ea5a7dad621678e45691c9df7f03d7", "simhash": "1:873f953786e79c9b", "word_count": 3150 }, "last_updated": "2023-07-14T18:50:38.610889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Beitt and PaeKEe, JJ., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LINDSEY STALLINGS" ], "opinions": [ { "text": "Mallard, C.J.\nDefendant contends, among other' things, that the warrant of arrest was obtained by the witness Hilliard in a manner which violated the provisions of G.S. 15-19, in that, he was never examined under oath by the issuing officer; that the warrant was void from the beginning, therefore, the trial in the Zebulon recorder\u2019s court was based on a void warrant; and that on an appeal the superior court did not have jurisdiction to try the defendant on this purported warrant.\nWarrants may not be issued without examination of the complainant under oath. State v. Higgins, 266 N.C. 589, 146 S.E. 2d 681; G.S. 15-19. In this case the record shows that the affidavit constituting a part of the warrant herein was subscribed and sworn to before W. B. Hopkins, clerk of the recorder\u2019s court.\nAlthough the testimony of the officer regarding the warrant appears to be contradictory with respect to whether he was sworn and examined by the issuing official prior to the issuance of the warrant, the record reveals that the following question was propounded to and answered by the officer:\n\u201cQ. Did you ever swear to this warrant at the time you signed it; did you swear to the content?\nA. The best I recall, I did.\u201d\nThis is affirmative testimony that the warrant was sworn to by the complainant. Since the warrant is valid and regular on its face, and the evidence does not clearly establish its invalidity, we are of the opinion and so hold that the warrant in this case is not void.\nDefendant also contends that the court committed error in denying his motion to quash the warrant and in denying his motion in arrest of judgment on the grounds that the issuing officer was a police officer and also the clerk of the recorder\u2019s court.\n\u201cA motion in arrest of judgment can be based only on matters which appear on the face of the record proper, or on matters which should, but do not, appear on the face of the record proper, (citations omitted) The record proper in any action includes only those essential proceedings which are made of record by the law itself, and as such are self-preserving, (citations omitted) The evidence in a case is no part of the record proper, (citations omitted) In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment.\u201d State v. Gaston, 236 N.C. 499, 73 S.E. 2d 311.\nThe motion to quash, which was made in the superior court after pleading to the warrant in the recorder\u2019s court, is addressed to the discretion of the trial court. The exercise of such discretion in the absence of abuse thereof is not reviewable on appeal. \u201cMere irregularities in a warrant regular and valid on its face are waived unless motion to quash is made before plea.\u201d 4 Strong, N. C. Index 2d, Indictment and Warrant, \u00a7 15. With respect to defendant\u2019s motion in arrest of judgment after pleading in the recorder\u2019s court, such plea is held to have waived defects, if any, incident to the authority of the person who issued the warrant. State v. Matthews, 270 N.C. 35, 153 S.E. 2d 791; State v. Blacknell, 270 N.C. 103, 153 S.E. 2d 789.\nThe Recorder\u2019s Court of Zebulon and Little River Township had jurisdiction of the offense charged in the warrant, and by entering his plea in that court without moving to quash the warrant, the defendant waives defects, if any, incident to the authority of the person who issued the warrant, and this waiver applies both in a motion to quash and in a motion in arrest of judgment on the same grounds. State v. Wiggs, 269 N.C. 507, 153 S.E. 2d 84; State v. Whaley, 269 N.C. 761, 153 S.E. 2d 493.\nDefendant contends that the trial court committed error in admission of certain evidence and in its ruling on certain questions. These questions relate, in the main, to references to cross burning. The first time cross burning is mentioned in the record is when the witness Hilliard responded to the following question in the following manner:\n\u201cQ. Tell us what happened?\nA. Well, I had a call to go out to the residence of James Neill in reference to a cross burning.\u201d\nThe defendant objected, moved to strike which motion was denied, and the defendant excepted.\nThe next reference to cross burning in the record is when the following question was propounded and answer made thereto by the witness Hilliard:\n\u201cQ. Of what?\nA. Some liquor. Inside the car were several empty beer cans.\nMe. SbNter: Objection.\nCourt: Overruled.\nA. Several beer cans, three full beers and a fifth of vodka half gone. We took it and carried Mr. Stallings on to the police station and locked him up after questioning him some first in reference to this cross burning, which he was later involved in.\u201d\nThere was no motion to strike the above reference to cross burning by the defendant. However, the court instructed the witness as follows: \u201cDon\u2019t comment on that, sir.\u201d\nThe next occasion in the record in which cross burning is referred to is while the same witness Hilliard was being questioned, when the following question and answer appear in the record:\n\u201cQ. What were you doing when you first saw the defendant drive by?\nMr. SeNTEr: Objection.\nCourt: Overruled.\nException No. 2.\nA. I was talking to the residents of this home in regard to this cross burning.\u201d\nThe defendant objected and moved to strike which objection was overruled and motion was denied.\nThe defendant did not object or move to strike the reference of the officer to the cross burning in which the defendant was later involved. In addition to this failure, after the witness Hilliard was taken on cross-examination by the defendant, the following question and answer were propounded by the defendant, not by the State:\n\u201cQ. Mr. Hilliard, do you have notes on this; did you or did you not make a statement to Robert Lindsey Stallings that if he would plead guilty and pay-off a charge of cross burning that you would request the lower court to accept a plea of careless and reckless driving to this charge?\nA. No, sir.\u201d\nThe defendant, therefore, cannot complain inasmuch as he is the one who brought out the fact that the defendant was charged with \u201ccross burning.\u201d\nThe next reference in the record with respect to cross burning is when the defendant himself was testifying and in response to questions asked by the defendant\u2019s lawyer, the defendant, without objection on the part of the State or the defendant, answered the following questions as follows:\n\u201cQ. What did he tell you when you went back to the car?\nA. He asked me what we were doing burning the cross.\nQ. What did you tell him?\nA. I told him we haven\u2019t burn no cross.\u201d\nThe evidence for the State tends to show that the defendant was operating an automobile on the public highways of North Carolina on the night of 26 May 1968 while under the influence of intoxicating beverages. The evidence of the defendant tends to show that he was not under the influence of intoxicating beverages but that he had \u201ca couple of beers and a drank (sic) of liquor.\u201d The defendant was asked by his attorney on direct examination, without objection, if he had ever been charged with driving under the influence and answered in the negative. He was then asked what motor vehicle laws he had ever been convicted of and replied none. All of this was without objection. The defendant was then asked by his counsel if he had any criminal record. The record is silent as to the purpose for which this question was asked by counsel for the defendant. Surely the defendant did not intend to attack his own credibility. Perhaps defendant felt that if he brought out his criminal record, it would make him appear in a better light to the jury. However, in response to the question as to what criminal record the defendant had, the defendant, again without objection, replied, \u201cWell, I paid off a public drunkenness ticket one time.\u201d His counsel asked him how long ago that had been, the witness replied, and counsel for defendant asked no further questions. Thereupon, the solicitor for the State asked the defendant if he had not been convicted of cross burning, and the witness replied that he had. The solicitor then asked the defendant why he did not inform the court of this when his attorney, Mr. Senter, asked him what he had been convicted of, and the defendant replied that he did not think about it. Thereupon, the witness was asked if he did not see a cross burning as he was driving his vehicle that night, and he said he did not see it at all, and then he was asked if the cross burning charge on which he was convicted did not occur on 25 May. The defendant\u2019s counsel objected, and the court sustained the objection. This was not error. The defendant was asked if he did not appeal his cross burning conviction to the Wake County Superior Court, and the defendant replied that he did and that the reason that the case is not pending now is that, \u201cI paid it off.\u201d The defendant gave as his reason for paying it off that he did not have money to hire a lawyer and, without objection, replied to the question that he complied with the judgment of the lower court in the cross burning case. Later in the examination, the solicitor asked the defendant if he did not testify for another person who was there in the courtroom \u201cwho is charged with cross burning.\u201d The objection of the defendant was sustained, and the witness was not permitted to answer. This was not error.\nThe defendant had not divulged to the court his conviction of the crime of \u201ccross burning.\u201d It was competent, therefore, for the solicitor to cross-examine the defendant about this and any other crimes of which the defendant may have been convicted for the purpose of impeaching him as a witness. State v. Robinson, 272 N.C. 271, 158 S.E. 2d 23.\nThe next reference in the record to burning a cross is when defendant\u2019s own witness, Billy Zester Horton, testified as to cross burning and used the term several times, none of which were objected to by the defendant. The solicitor was permitted, over objection, to question defendant\u2019s witness as to whether he was involved in burning a cross.\nIn 7 Strong, N. C. Index 2d, Witnesses, \u00a7 8, we find the following:\n\u201cThe latitude of cross-examination for the purpose of impeachment is wide. A witness may be asked questions on cross-examination which tend to test his accuracy, to show his interest or bias, or impeach his credibility. The mentality of the witness is a subject of cross-examination, and a witness may be asked if he had not been an inmate of a mental institution. Questions relating to crime and antisocial conduct are allowed. Nevertheless, the bounds of the cross-examination must be confined within reason to questions rationally tending to affect the credibility of the witness, and which relate to matters testified to in the examination-in-chief which are germane to the controversy. And the extent to which cross-examination for the purpose of impeachment will be permitted rests largely in the discretion of the trial court.\u201d\nWe have carefully examined all of the defendant\u2019s exceptions and assignments of error in respect to the references to and questions asked relating to cross burning, and all are overruled.\nThe defendant contends that the court committed error when it stated in sentencing the defendant:\n\u201cYou may stand, Mr. Stallings. Let the record show that from the observations of the defendant\u2019s demeanor and his testimony in a case heard during this week in which he testified as well as in this case, the Court finds that he is not a proper subject for consideration upon a fine and suspended sentence. In the present case, Mr. Stallings, you are not being punished for the offense of cross burning, you have been punished for that and met the judgment of that; but your conduct and appearance here in court on whatever advice it may have been or on what motive it may have been makes me think you are not deserving of lenience that\u2019s given to first offenders of driving under the influence.\u201d\nAlthough the defendant contends that the statement of the court in sentencing the defendant is error, the defendant does not cite any authority for this position. This contention is without merit. We find in the case of State v. Thompson, 267 N.C. 653, 148 S.E. 2d 613, the following:\n\u201cNevertheless, we point out that in determining what punishment should be imposed upon a defendant, a court is not confined to evidence relating to the offense charged. 'It may look anywhere, within reasonable limits, for other facts calculated to enable it to act wisely in fixing punishment. Hence, it may inquire into such matters as the age, character, the education, the environment, the habits, the mentality, the propensities, and the record of the person about to be sentenced.\u2019 State v. Cooper, 238 N.C. 241, 244, 77 S.E. 2d 695, 698.\u201d\nThe able judge who presided in this case did not commit error when he stated in passing judgment that he was considering the conduct and appearance of the defendant in court. The sentence imposed herein was well within the limits allowed by law. It is noted that the trial judge informed the defendant that he had been punished for the other crime that he admitted he had been convicted of but that the judge did take into consideration his conduct, appearance and demeanor as he appeared in court. This was not error.\nWe have carefully examined all of the assignments of error brought forward by the defendant and find no error prejudicial to the defendant.\nNo error.\nBeitt and PaeKEe, JJ., concur.", "type": "majority", "author": "Mallard, C.J." } ], "attorneys": [ "Attorney General Robert Morgan, Assistant Attorney General William W. Melvin, and Staff Attorney T. Buie Costen for the State.", "Hubert H. Senter for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LINDSEY STALLINGS\nNo. 6910SC145\n(Filed 2 April 1969)\n1. Indictment and Warrant \u00a7 6\u2014 issuance of warrants \u2014 the oath\nWarrants may not be issued without examination of the complainant under oath. G.S. 15-19.\n2. Indictment and Warrant \u00a7 6\u2014 issuance of warrant under oath\nEvidence is held sufficient to support a finding that warrant, which was valid and regular on its face, was sworn to by the complaining witness at the time he signed it.\n8. Indictment and Warrant \u00a7 15\u2014 motion to quash \u2014 time of motion \u2014 review\nA motion to quash, made in the superior court after pleading to the warrant in the recorder\u2019s court, is addressed to the discretion of the trial court, and the exercise of such discretion in the absence of abuse thereof is not reviewable on appeal.\n4. Indictment and Warrant \u00a7 15\u2014 waiver of irregularity in warrant\nMere irregularities in a warrant regular and valid on its face are waived unless motion to quash is made before plea.\n5. Indictment and Warrant \u00a7 15\u2014 waiver of defect in warrant relating to authority of issuing officer\nBy pleading to a warrant in an inferior court having jurisdiction of the offense charged before moving to quash the warrant in the superior court on grounds that the issuing officer was a police officer, defendant waives defects, if any, incident to the authority of the person who issued the warrant, and the waiver applies both in a motion to quash and in a motion in arrest of judgment on the same grounds.\n6. Criminal Law \u00a7 169\u2014 harmless or prejudicial error in admission of evidence \u2014 failure to object \u2014 admission of similar evidence\nIn a prosecution upon warrant charging defendant with the unlawful operation of a motor vehicle on the highways of the state while under the influence of intoxicating beverages, defendant was not prejudiced by testimony of a police officer on direct examination relating to his investigation of a cross burning in addition to investigation of the offense charged, since (1) the defendant did not object or move to strike the reference to the cross burning and (2) the defendant himself, on cross-examination of the officer, brought out the fact that defendant was charged with the offense of \u201ccross burning.\u201d\n7. Criminal Law \u00a7 86\u2014 impeachment of defendant \u2014 evidence of other crimes\nWhere defendant took the stand in his own behalf in a prosecution for driving on the highways of the state while under the influence of intoxicating beverages, it was competent for the solicitor to cross-examine defendant about his conviction of the crime of \u201ccross burning,\u201d as well as any other crimes of which defendant may have been convicted, for the purpose of impeaching him as a witness.\n8. Criminal Law \u00a7 88\u2014 cross-examination of witnesses \u2014 latitude of solicitor\nIn a prosecution upon warrant charging defendant with the unlawful operation of a motor vehicle on the highways of the state while under the influence of intoxicating liquor, where defendant\u2019s own witness testified on direct examination as to \u201ccross burning\u201d and used the term several times, the solicitor has wide latitude to cross-examine the witness for purposes of impeachment as to whether the witness was involved in a \u201ccross burning.\u201d\n9. Criminal Law \u00a7 138\u2014 determination of sentence \u2014 observation of defendant\u2019s trial conduct\nIn determining sentence of imprisonment on defendant\u2019s first conviction of operating a motor vehicle while under the influence of intoxicating beverages, trial court did not err in considering the conduct and appearance of the defendant in court.\nAppeal by defendant from McKinnon, \u00ab/., Regular October 1968 Criminal Session of Superior. Court of Wake County.\nDefendant was charged in a warrant with unlawfully and wil-fully operating a motor vehicle on the state highways of North Carolina while under the influence of intoxicating beverages. The warrant is signed by - \u201cW. B. HopKINS, Clerk of the Recorder\u2019s Court\u201d and was issued,\u2019 according to the title thereof, \u201cin the Recorder\u2019s Court of Zebulbn'and Little River Township.\u201d The record shows that at his trial in the Recorder\u2019s Court of Zebulon and Little River Township the defendant was found guilty and from sentence imposed, appealed to the Superior Court.\nPrior to entering a plea of not guilty in the Superior Court, the defendant for the first time moved the court to quash the warrant, which motion was denied. Upon the trial, the jury returned a verdict of guilty as charged. After judgment of imprisonment for a term of six months was imposed, the defendant moved in arrest of judgment, which motion was denied. The defendant excepted and, assigning error, appealed to the,Court of Appeals.\nAttorney General Robert Morgan, Assistant Attorney General William W. Melvin, and Staff Attorney T. Buie Costen for the State.\nHubert H. Senter for defendant appellant." }, "file_name": "0184-01", "first_page_order": 204, "last_page_order": 212 }