{ "id": 8560181, "name": "STATE v. LABURN LEON KEITH", "name_abbreviation": "State v. Keith", "decision_date": "1966-01-14", "docket_number": "", "first_page": "263", "last_page": "269", "citations": [ { "type": "official", "cite": "266 N.C. 263" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "56 A.L.R. 260", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "56 A.L.R. 257", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "140 S.E. 55", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "104 W. Va. 330", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8636910 ], "opinion_index": 0, "case_paths": [ "/w-va/104/0330-01" ] }, { "cite": "160 N.Y.S. 493", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3180786 ], "opinion_index": 0, "case_paths": [ "/nys/160/0493-01" ] }, { "cite": "34 N.Y. Crim. Rep. 396", "category": "reporters:state", "reporter": "N.Y. Crim.", "case_ids": [ 1215147 ], "opinion_index": 0, "case_paths": [ "/ny-crim/34/0396-01" ] }, { "cite": "95 Misc. 104", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 1215147, 1893236 ], "opinion_index": 0, "case_paths": [ "/ny-crim/34/0396-01", "/misc/95/0104-01" ] }, { "cite": "209 N.W. 81", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "235 Mich. 340", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1718882 ], "opinion_index": 0, "case_paths": [ "/mich/235/0340-01" ] }, { "cite": "48 N.E. 1086", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "170 Mass. 192", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 466000 ], "opinion_index": 0, "case_paths": [ "/mass/170/0192-01" ] }, { "cite": "46 P. 709", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "57 Kan. 428", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1207582 ], "opinion_index": 0, "case_paths": [ "/kan/57/0428-01" ] }, { "cite": "119 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8299948 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/119/0436-01" ] }, { "cite": "22 S.E. 2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629934 ], "opinion_index": 0, "case_paths": [ "/nc/222/0283-01" ] }, { "cite": "94 S.E. 2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219444 ], "opinion_index": 0, "case_paths": [ "/nc/244/0679-01" ] }, { "cite": "74 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604963 ], "opinion_index": 0, "case_paths": [ "/nc/237/0029-01" ] }, { "cite": "63 S.E. 958", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "150 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273040 ], "opinion_index": 0, "case_paths": [ "/nc/150/0805-01" ] }, { "cite": "86 S.E. 1019", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662048 ], "opinion_index": 0, "case_paths": [ "/nc/170/0701-01" ] }, { "cite": "77 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603004 ], "opinion_index": 0, "case_paths": [ "/nc/238/0228-01" ] }, { "cite": "142 S.E. 2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574164 ], "opinion_index": 0, "case_paths": [ "/nc/264/0517-01" ] }, { "cite": "43 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626232 ], "opinion_index": 0, "case_paths": [ "/nc/227/0527-01" ] }, { "cite": "18 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626100 ], "opinion_index": 0, "case_paths": [ "/nc/221/0070-01" ] }, { "cite": "195 S.E. 819", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627798 ], "opinion_index": 0, "case_paths": [ "/nc/213/0299-01" ] }, { "cite": "139 S.E. 2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569718 ], "opinion_index": 0, "case_paths": [ "/nc/263/0273-01" ] }, { "cite": "188 S.E. 421", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628566 ], "opinion_index": 0, "case_paths": [ "/nc/210/0686-01" ] }, { "cite": "132 S.E. 603", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "191 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630901 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/191/0659-01" ] }, { "cite": "61 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2090049 ], "opinion_index": 0, "case_paths": [ "/nc/61/0205-01" ] }, { "cite": "4 S.E. 2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "216 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595826 ], "opinion_index": 0, "case_paths": [ "/nc/216/0157-01" ] } ], "analysis": { "cardinality": 745, "char_count": 14422, "ocr_confidence": 0.584, "pagerank": { "raw": 3.2975333354994267e-07, "percentile": 0.8716915542180258 }, "sha256": "9edb2fe69322bfbadc8244670bdd5970bfe77189fcd002e5309eb15ffeb261e0", "simhash": "1:7621666ff7570dd2", "word_count": 2554 }, "last_updated": "2023-07-14T18:16:51.556627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. LABURN LEON KEITH." ], "opinions": [ { "text": "DeNNY, C.J.\nThe appellant assigns as error the ruling of the court below that the confession allegedly made by defendant Keith to Sergeant Stephenson of the Raleigh Police Department, was voluntary.\nThis is an unusual case in some respects. Defendant Keith does not contend that his confession was coerced or otherwise improperly obtained; on the contrary, he contends he made no confession, and so testified in his own behalf in the trial below; he further contends that he was detained for six hours and was never informed of any charge against him.\nThe State\u2019s evidence, however, is to the effect that Sergeant Stephenson informed Keith that he was not under arrest; that he was free to leave any time he so desired but that he (Stephenson) wanted to talk to him about a safe job at Auto Parts; that anything he told him could be used either for or against him; that if he wanted to do so he could call his attorney or any friend or relative; that he did not have to tell him anything; that no threats of bodily harm would be made against him if he did not talk. In response to the suggestion that he might call his attorney or a friend or relative, defendant stated that he did not want to call anyone.\nThere was ample evidence to support the ruling of the court below that the statements made by Keith were voluntary.\nIn S. v. Fain, 216 N.C. 157, 4 S.E. 2d 319, Stacy, C.J., said: \u201cIt is the established procedure with us that the competency of a confession is a preliminary question for the trial court, S. v. Andrew, 61 N.C. 205, to be determined in the manner pointed out in S. v. Whitener, 191 N.C. 659, 132 S.E. 603, and that the court\u2019s ruling thereon will not be disturbed, if supported by any competent evidence. S. v. Moore, 210 N.C. 686, 188 S.E. 421. * * *\u201d\nA confession is voluntary only if in fact it was voluntarily made. When a defendant objects to the introduction of a purported confession, it is the duty of the trial judge to hear the evidence bearing on the voluntariness of such purported confession in the absence of the jury. This was done in the instant case. The defendant did not testify on the voir dire or offer any evidence tending to show the purported confession was involuntary or improperly obtained. Defendant\u2019s counsel, however, did cross-examine Sergeant Stephenson at length.\nIn S. v. Elam, 263 N.C. 273, 139 S.E. 2d 601, Parker, J., speaking for the Court, said:\n\u201cDefendant\u2019s contention that Elam\u2019s extrajudicial confessions were admitted without a proper preliminary inquiry is overruled. When sergeant Bunn was asked by the prosecuting officer for the State what conversation he had with Elam, Elam\u2019s lawyer objected and the trial judge sent the jury to their room. Whereupon, Elam\u2019s lawyer, Mr. Purser, cross-examined and recross-examined Bunn at length in respect to the circumstances surrounding the making of the extrajudicial confessions of guilt by Elam. After this was finished, there is nothing in the record to indicate that defendant desired to offer any evidence in rebuttal of Bunn\u2019s testimony. Certainly, there is nothing to indicate that the trial judge refused to hear any evidence by defendant in rebuttal. \u2018It was not the duty of the court to call upon the defendant to offer evidence.\u2019 S. v. Smith, 213 N.C. 299, 195 S.E. 819. * * *\u201d\nNo error has been made to appear in the admission of the defendant\u2019s confession. S. v. Whitener, 191 N.C. 659, 132 S.E. 603; S. v. Manning, 221 N.C. 70, 18 S.E. 2d 821; S. v. Litteral, 227 N.C. 527, 43 S.E. 2d 84; S. v. Elam, supra.\nThe defendant relies on the case of S. v. Barnes, 264 N.C. 517, 142 S.E. 2d 344, and contends that the court below failed to find the facts in regard to the circumstances surrounding the making of the incriminating statements in order that the conclusion as to whether the confession was free and voluntary might be reviewed on appeal.\nIn the instant case, there was no conflicting testimony offered on the voir dire as there was in such hearing in the Barnes case. Defendant\u2019s contention is without merit on the record before us and we so hold.\nThe defendant assigns as error the trial court\u2019s denial of his motion to dismiss the action on the ground there is no evidence that the warrant issued by the City Court of Raleigh was ever read to or served on him.\nThe State\u2019s evidence tends to show that the warrant was issued on 21 January 1965, read to and served on the defendant Keith sometime after 1:00 p.m. on the day it was issued, and that later that same afternoon Keith waived a preliminary hearing in the City Court of Raleigh. Defendant testified that he did not recall whether or not he had a preliminary hearing.\nThe record further tends to show that the Judge of the City Court of Raleigh found probable cause and fixed bond in the sum of $1,000 on 21 January 1965. The bill of indictment was returned at the February 1965 Special Session of the Superior Court of Wake County. Judge Bickett appointed counsel to represent the defendant on 12 February 1965. Defendant was not tried until 1 March 1965 Conflict Criminal Session of the Superior Court of Wake County.\nIn 22 C.J.S., Criminal Law, \u00a7 327, page 838, it is said:\n\u201cObjections to irregularities or defects in the issuance, form, or execution of a warrant of arrest, which do not go to the jurisdiction, should be taken on the preliminary examination before the magistrate, and if accused fails to object at that time, enters a general appearance, and makes a plea to the charge, such irregularities will be held to be cured or the objections thereto will be held to be waived.\u201d\nThe record herein discloses that the defendant did not move to dismiss on the ground specified in his motion until after the verdict of the jury had been returned.\nIn the case of S. v. Doughtie, 238 N.C. 228, 77 S.E. 2d 642, it is said:\n\u201cAny defect in the process by which a defendant is brought into court may be waived by him by appearing before the court having jurisdiction of the case. S. v. Turner, supra (170 N.C. 701, 86 S.E. 1019); S. v. Cale, supra (150 N.C. 805, 63 S.E. 958). The defendant may waive a constitutional right relating to a mere matter of practice or procedure. Miller v. State, 237 N.C. 29, 74 S.E. 2d 513. If the law were otherwise, a defendant could take his chance of acquittal on a trial on the merits and, if convicted, contend that he was not in court.\u201d\nIn S. v. Sutton, 244 N.C. 679, 94 S.E. 2d 797, the defendant challenged the right of the State to put him on trial in the Superior Court on warrants for speeding and reckless driving, on the ground that he had been arrested outside the corporate limits of the City of Kinston by a policeman of the City of Kinston, citing Wilson v. Mooresville, 222 N.C. 283, 22 S.E. 2d 907. This Court said:\n\u201cWe concur in what was said in the above case. Even so, we know of no authority that prohibits or bars a prosecution because the arrest was unlawful.\n\u201cIn 15 Am. Jur., Criminal Law, \u00a7 317, page 15, et seq., it is said: \u2018As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.\u2019 Kerr v. Illinois, 119 U.S. 436, 30 L. Ed. 421; S. v. May, 57 Kan. 428, 46 P. 709; Commonwealth v. Tay, 170 Mass. 192, 48 N.E. 1086; People v. Miller, 235 Mich. 340, 209 N.W. 81; People v. Ostrosky, 95 Misc. 104, 34 N.Y. Crim. Rep. 396, 160 N.Y.S. 493; S. v. McClung, 104 W. Va. 330, 140 S.E. 55, 56 A.L.R. 257. For additional authorities in support of the above view, see Anno. 56 A.L.R. 260.\n\u201cIt is likewise said in 22 C.J.S., Criminal Law, \u00a7 144, page 236, et seq.: \u2018The illegal arrest of one charged with crime is no bar to his prosecution if all other elements necessary to give a court jurisdiction to try accused are present, a conviction in such a case being unaffected by such unlawful arrest.\u2019 \u201d\nThe defendant herein makes no attack upon the warrant upon which he was bound over to the Superior Court, or to the Validity of the bill of indictment upon which he was tried.\nThe defendant expressly abandons all other assignments of error.\nIn our opinion, the defendant has had a fair trial, free from prejudicial error, and we so hold.\nNo error.", "type": "majority", "author": "DeNNY, C.J." } ], "attorneys": [ "Attorney General Bruton, Deputy Attorney General Harrison Lewis, Trial Attorney Henry T. Rosser for the State.", "Charles O\u2019H. Grimes for defendant." ], "corrections": "", "head_matter": "STATE v. LABURN LEON KEITH.\n(Filed 14 January, 1966.)\n\u00cd. Criminal Law \u00a7 71\u2014\nThe competency of a confession is a preliminary question for the trial court upon the voir dire, and the court\u2019s ruling thereon will not he disturbed if supported by any competent evidence.\n2. Same\u2014\nA confession is voluntary only if, in fact, it is voluntarily made.\nS. Same\u2014\nUpon the voir dire the court heard evidence that defendant voluntarily made the confession, later admitted in evidence, without force, fear or favor. Defendant elected not to introduce any evidence upon the voir dire, but contended that he had never made any confession. Held: The admission of the confession in evidence was proper.\n4. Same\u2014\nObjection that the court did not find the facts upon which it concluded that the confession offered in evidence was voluntary held inapposite when defendant contends that he had made no confession and does not contest the State\u2019s evidence supporting the conclusion of voluntariness.\n5. Criminal Law \u00a7 21\u2014\nThe evidence in this case shows that the warrant was read to and served upon defendant, and defendant\u2019s contention to the contrary held precluded by waiver in failing to make objection until after verdict.\nAppeal by defendant from Bickett,