{ "id": 8572920, "name": "STATE OF NORTH CAROLINA v. HAROLD EDWARD JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "1972-03-15", "docket_number": "No. 55", "first_page": "563", "last_page": "576", "citations": [ { "type": "official", "cite": "280 N.C. 563" } ], "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": "166 S.E. 2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "62" } ], "opinion_index": 0 }, { "cite": "275 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558175 ], "year": 1969, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0141-01" ] }, { "cite": "148 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560079 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0618-01" ] }, { "cite": "185 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "238-39" } ], "opinion_index": 0 }, { "cite": "279 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571921 ], "year": 1971, "pin_cites": [ { "page": "661-62" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0643-01" ] }, { "cite": "184 S.E. 2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "279 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571190 ], "year": 1971, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0566-01" ] }, { "cite": "185 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569736 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0042-01" ] }, { "cite": "181 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "172 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "276 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561001 ], "year": 1970, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0279-01" ] }, { "cite": "75 S.E. 2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612826 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0427-01" ] }, { "cite": "121 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569267 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0347-01" ] }, { "cite": "103 S.E. 2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624346 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0447-01" ] }, { "cite": "17 A.L.R. 3d 1181", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "163 S.E. 594", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "202 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627683 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/202/0592-01" ] }, { "cite": "161 S.E. 205", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "201 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627729 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/201/0714-01" ] }, { "cite": "133 S.E. 14", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "opinion_index": 0 }, { "cite": "191 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631417 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/nc/191/0751-01" ] } ], "analysis": { "cardinality": 1053, "char_count": 29467, "ocr_confidence": 0.544, "pagerank": { "raw": 2.3293442036443386e-07, "percentile": 0.7908934072990356 }, "sha256": "b21189b99ff7ba4a40e264a23aad718b5c553e258b39ee0ee9bd6887efddd4bd", "simhash": "1:bcdedcf7f6efac53", "word_count": 4956 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. HAROLD EDWARD JACKSON" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nEach count charged a violation of G.S. 90-88, which provided: \u201cIt shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this article [Chapter 90, Article 5].\u201d The first count charged that defendant had possession and control of the described narcotic drugs; the second count charged that defendant dispensed them to one Neil Cooper, age 15. The State offered no evidence that defendant had possession and control of any narcotic drugs except those he dispensed to Neil.\nPunishment for violation of G.S. 90-88 is set forth in G.S. 90-111. Section (a) of the latter statute provides a penalty for first violation by \u201cany person\u201d of not more than five years in prison. Section (c) increases the penalty to a minimum of ten years if the offense of dispensation is \u201cto a minor by an adult.\u201d\nDefendant\u2019s brief does not bring forward and discuss the assignments of error based on defendant\u2019s exceptions to the overruling of his motions for judgments as in case of nonsuit.\nThe record shows that \u201c[p]rior to the introduction of evidence by the State, the defendant, through counsel, moved to quash the bill of indictment.\u201d Assignment of Error No. 1 is based on defendant\u2019s exception to the denial of this motion.\nThe record does not disclose the grounds, if any, advanced in the court below in support of the motion to quash. On appeal, defendant asserts (1) that the second count does not charge a criminal offense punishable under G.S. 90-111 (c) in that it does not allege that defendant is an adult; and (2) that G.S. 90-111 (c) is unconstitutionally vague and indefinite in that it does not define the words \u201cminor\u201d and \u201cadult\u201d as used therein.\nWhile the jury deliberated, the court, allowing the solicitor\u2019s motion therefor, entered an order purporting to amend the second count by including therein an allegation that defendant was \u201can adult person, age 25.\u201d Defendant\u2019s Assignment of Error No. 28, based on his exception to the purported amendment, has merit. \u201cIn the absence of statute, an indictment cannot be amended by the court or prosecuting officer in any matter of substance without the consent of the grand jury which presented it.\u201d 42 C.J.S. Indictments and Information \u00a7 230 (a). Accord: State v. Corpening, 191 N.C. 751, 133 S.E. 14 (1926); State v. Dowd, 201 N.C. 714, 161 S.E. 205 (1931); State v. Cole, 202 N.C. 592, 163 S.E. 594 (1932). See Comment Note, Power of court to make or permit amendment of indictment, 17 A.L.R. 3d 1181 et seq. We do not consider to what extent, if any, a bill of indictment may be amended with the consent of a defendant and his counsel. Suffice to say, this defendant did not consent to the amendment.\nWe hold the second count, without amendment, sufficiently charged a criminal offense in violation of G.S. 90-88 which, if committed by an adult person, is punishable under G.S. 90-111(c). G.S. 90-111 (c) does not define or create a criminal offense. The age of defendant is not an element of the crime; it is relevant only on the subject of punishment. By analogy, under former G.S. 14-33 (Volume IB, Recompiled 1953) simple assault was punishable as a general misdemeanor when committed by a male person over 18 years of age on a female person, but punishable only by thirty days imprisonment if committed by a male person 18 years of age or less. Since it was not an essential element of the criminal offense, it was not required that the indictment allege that the defendant was a male person over 18 years of age at the time of the alleged assault. State v. Courtney, 248 N.C. 447, 103 S.E. 2d 861 (1958), and cases cited; State v. Beam, 255 N.C. 347, 121 S.E. 2d 558 (1961). Here, although the indictment did not allege the age of defendant or that he was an adult, the State offered evidence that defendant was 25 years of age and the jury so found. With reference to the second count, the trial judge instructed the jury as follows: \u201c[I]f the State has satisfied you beyond a reasonable doubt, the burden being on the State to so satisfy you, that on the 27th day of September, 1970, this defendant was twenty-five years of age, or more than twenty-one years of age, and that Neil Cooper was fifteen years of age, having been born on November 23, 1954, and that the defendant dispensed to him any quantity of Marijuana or LSD, and if the State has so satisfied you beyond a reasonable doubt, it will be your duty to convict him as charged in the second count of the bill of indictment. If the State has failed to so satisfy you, it will be your duty to acquit him of that second count.\u201d\nDefendant contends he was prejudiced because he was not advised by the indictment that he was to be tried for an offense punishable under G.S. 90-111 (c). This contention is without substance. The second count alleges explicitly the age of Neil Cooper. No allegation was required to notify defendant of his own age.\nDefendant seems to rely largely on State v. Miller, 237 N.C. 427, 75 S.E. 2d 242 (1953), which holds: \u201cWhere a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty.\u201d (Our italics.) Although the decision in Miller was based primarily on G.S. 15-147, due process would seem to require that the State identify by allegation any previous conviction of defendant on which it intended to rely as a basis for the imposition of greater punishment. In such case, the identity and relevance of prior court proceedings are involved. Absent such allegations, the defendant would be brought to trial without notice of matters necessary to enable him to prepare his defense. Neither a statute nor an infringement of due process supports defendant in the present case.\nThere is no merit in defendant\u2019s contention that G.S. 90-111 (c) \u2014 the punishment statute \u2014 is unconstitutional because it fails to define \u201cminor\u201d and \u201cadult\u201d as used therein. Under the common law, persons, whether male or female, are classified and referred to as infants until they reach the age of twenty-one years. Personnel Corp. v. Rogers, 276 N.C. 279, 281, 172 S.E. 2d 19, 20 (1970). \u201cIn the law the word \u2018infant\u2019 refers to a person who has not arrived at his majority as fixed by law, and the word \u2018infancy\u2019 as used in law means minority or nonage.\u201d 42 Am. \u00abTur. 2d Infants \u00a7 1. Except when otherwise provided by statute, a person, male or female, is a minor until he attains the age of twenty-one years. Upon attaining the age of twenty-one years a person reaches his or her majority and is an adult. These common-law definitions apply to the words \u201cminor\u201d and \u201cadult\u201d as used in G.S. 90-111 (c) as of September, 1970.\nWe take notice of the fact that the General Assembly of 1971 enacted Chapter 585 of the Session Laws of 1971, which provides: \u201c\u00a7 48A-1. Common law definition of \u2018minor\u2019 abrogated. \u2014 The common law definition of minor insofar as it pertains to the age of the minor is hereby repealed and abrogated.\u201d \u201c\u00a7 48A-2. Age of minors. \u2014 A minor is any person who has not reached the age of 18 years.\u201d We need not consider in what respects, if any, the words \u201cminor\u201d and \u201cadult\u201d as used in G.S. 90-111 (c) have been modified by the 1971 Act. Under any permissible definition, a 15-year-old boy is a minor and a 25-year-old man is an adult.\nDefendant assigns as error the admission of testimony of Officers Heffinger and Cox as to statements by defendant on October 12, 1970, in defendant\u2019s apartment, which testimony is summarized in our statement of facts.\nAfter Heffinger was put on the stand and gave testimony leading up to the statements that defendant was alleged to have made on the occasion of his arrest, defendant\u2019s counsel \u201cmoved for a voir dire examination concerning the voluntariness of any statement made to the investigating officer.\u201d The jury was excused and a voir dire hearing was conducted. The State offered the testimony of Heffinger. Defendant\u2019s counsel \u201cput the defendant on for the limited purpose of this voir dire examination.\u201d The testimony, except when quoted, is summarized below.\nOn voir dire, Heffinger testified that he advised defendant with particularity of each of his constitutional rights as stated in Miranda; that defendant said he understood his rights; that defendant appeared to be normal and to understand what Hef-finger said to him; that he made no threats against defendant to get him to make a statement; that he did not offer defendant any inducement or hope of reward; and that, after having been so advised by Heffinger, \u201ccertain conversation did follow.\u201d Thereupon, Heffinger was cross-examined by defendant\u2019s counsel. On cross-examination, he testified that defendant made no specific statement or comment \u201cas to his right to have a lawyer\u201d and that defendant did not tell him \u201cthat he had been taking LSD on that particular day.\u201d\nOn voir dire, defendant testified that three officers, Hef-finger, Cox and a third officer (later identified as Gibson in Cox\u2019s testimony before the jury), came to his apartment on West Fisher Avenue around twelve o\u2019clock noon on October 12, 1970; that when Heffinger knocked on the door, he stated he was a police officer and defendant \u201clet him in\u201d; that defendant let \u201cthem\u201d in after \u201cthey\u201d told him they had a search warrant; that, upon entering the apartment, one of the officers handcuffed defendant while the search warrant was being read to him; that there was \u201cmass confusion\u201d; that Heffinger was talking \u201cabout one thing\u201d and the others were searching the apartment.\nDefendant testified further that although he could not deny that he was advised of his rights, including the right to have a lawyer present when the officers talked to him, he \u201cdidn\u2019t fully understand it\u201d; that he (defendant) \u201cdidn\u2019t make any comment at all about [his] rights\u201d; that, after they had searched the apartment, the officers told defendant that he was under arrest and took him into custody; that he was not advised \u201cspecifically\u201d at that time what he was \u201cunder arrest for\u201d; that no warrant of arrest was served on defendant until \u201c [a] pproxi-mately nine o\u2019clock that night\u201d; and that he first realized that he was \u201ccharged with dispensing drugs to a juvenile\u201d when they served the warrant on him.\nDefendant testified further that, when the officers arrived at his apartment, defendant was \u201cstill feeling the effects\u201d of \u201cmore than the usual dosage\u201d of LSD; that he had taken four tablets the night before and was \u201cstill to some extent under the influence\u201d of it; and that he \u201cwas in a confused state of mind,\u201d being partly under the influence of LSD \u201c[a]nd marijuana.\u201d\nOn cross-examination, defendant testified that he was twenty-five years of age; that he had a high school education; and that he had spent seven years in the army where he had approximately five years of training in electronics. Referring to what occurred in defendant\u2019s apartment about twelve o\u2019clock noon on October 12, 1970, the solicitor\u2019s question and defendant\u2019s answer are as follows: \u201cQ. And you don\u2019t know whether you told them anything or not about Neil Cooper on that day? A. I did not specify any name, but I made a comment or something about Neil \u2014 something or other \u2014 I can\u2019t recall the exact \u2022conversation because, like I said, you know the whole situation was \u2014 I wasn\u2019t aware of what was really going on.\u201d When asked if he did not tell the officers \u201cthat [he] gave Neil about ten bags of Marijuana and some LSD,\u201d defendant answered, \u201cNo,\u201d \u2014\u201cI think I made remarks later on that night when I was being interrogated.\u201d Asked if he did not tell the officers that he had seen Neil and had a transaction with him about two weeks prior to the time that they were there in his apartment, defendant answered: \u201cI recall a conversation more or less in that direction, yes.\u201d Upon further redirect examination with reference to an interrogation subsequent to the occasion of his arrest, defendant answered: \u201cI think it was two days later in the evening.\u201d\nAt the conclusion of the voir dire hearing, the court made the following findings of fact:\n\u201cThe Court : Let the record show that on the occasion that Mr. Heffinger and the other two police officers went to the apartment of the defendant with a search warrant; that the defendant was warned of his constitutional rights under the Miranda decision; and that thereafter that any statements that were made were voluntary to the police officers, and made without any offer of reward or hope of reward or without any threats being made upon him.\n\u201cThe Court is of the opinion and further finds as a fact that the defendant on the occasion was aware of the presence of the officers; that they were there with a search warrant; and that they were naming to him his rights under the rules of the Miranda decision; that he knew and understood from what the officers told him what his constitutional rights were.\u201d\nWe note here that no questions were raised concerning the validity of the search warrant and no evidence was offered as to the results of the search.\nDefendant excepted \u201cto the failure of the court to make adequate and appropriate findings of fact and conclusions of law consistent with the evidence produced on the voir dire examination.\u201d Assignment of Error No. 6 is based on this exception. Assignments of Error Nos. 7 and 8 are based on defendant\u2019s exceptions to the admission of the testimony of Heffinger and Cox as to statements made by defendant.\nThe main thrust of defendant\u2019s argument in support of Assignment of Error No. 6 is that the findings were insufficient to show that defendant had waived his right to counsel either orally or in writing. Defendant also argues that the findings are deficient in that there is no specific finding that defendant was not under the influence of narcotics on October 12, 1970, when he and the officers were in his apartment.\nThere was no evidence or findings to show that defendant, when talking with the officers at his apartment on October 12, 1970, had waived his right to counsel, either in writing as provided by G.S. 7A-457 (1969 Replacement Volume), the statute on which State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971), is based, or orally as provided by Miranda, the decision on which State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971), is based. Since defendant was then arrested and in custody, the testimony as to what defendant said on that occasion would be incompetent if defendant\u2019s statements were made in response to interrogation by officers. But there was no evidence that defendant was interrogated by any officer on that occasion. (Note: Defendant testified on voir dire to an incriminating statement made by him when interrogated on a subsequent occasion. The State offered no evidence as to comments or statements by defendant except those made by him to the officers at his apartment around the noon hour on October 12, 1970.) Under the circumstances disclosed by the evidence, the volunteered statements then made by defendant were admissible under Miranda as fully stated in our prior decisions. State v. Gladden, 279 N.C. 566, 570, 184 S.E. 2d 249, 252 (1971), and cases cited; State v. Chance, 279 N.C. 643, 661-62, 185 S.E. 2d 227, 238-39 (1971), and cases cited. The inherent nature of the comments or statements made by defendant on the occasion of his arrest supports the evidence that they were made spontaneously rather than in response to interrogation.\nWe consider next whether the testimony as to what was said by defendant when talking with the officers at his apartment on October 12, 1970, was incompetent because the trial judge failed to make an explicit finding with reference to whether defendant was under the influence of drugs when the comments or statements were made. Defendant also contends that Judge Johnston\u2019s findings are insufficient because they were essentially conclusions of law rather than findings of fact, citing State v. Conyers, 267 N.C. 618, 148 S.E. 2d 569 (1966), and State v. Moore, 275 N.C. 141, 153-54, 166 S.E. 2d 53, 62 (1969).\nJudge Johnston found as a fact that the police officers went to the apartment of defendant with a search warrant. Both Heffinger and defendant testified to that effect. Judge Johnston found that defendant was warned of his constitutional rights. Heffinger testified that defendant was advised specifically as to each of his constitutional rights as listed in Miranda. Defendant testified that he remembered something about his rights; and that, although he could not deny having been advised of his rights, he \u201cdidn\u2019t fully understand it, no.\u201d Judge Johnston found that any statements made by defendant to the police officers were made voluntarily in that they were \u201cmade without any offer of reward or hope of reward or without any threats being made upon him.\u201d Heffinger so testified. Defendant did not contradict this testimony.\nWith reference to whether defendant was under the influence of drugs on October 12, 1970, when the officers were with him in the apartment, the crucial fact is whether defendant knew what was being said and done on that occasion. Only defendant could have known when and to what extent he had taken drugs. The officers could testify only to what defendant said and did on that occasion. While there is no explicit finding with reference to drugs, Judge Johnston did find as a fact \u201cthat the defendant on the occasion was aware of the presence of the officers; . . . [and] that he knew and understood from what the officers told him what his constitutional rights were.\u201d There was ample evidence to support these findings of fact.\nWhile more explicit phraseology might have been used, we consider the findings that defendant was aware of the presence of the officers and that he understood his constitutional rights as substantially equivalent to a finding that defendant understood what was being said and what was transpiring on that occasion. Moreover, counsel for defendant did not request a specific finding about whether defendant was under the influence of drugs or whether his statements were understanding^ made, nor did he except on the ground that the court had failed to make such a finding. Doubtless Judge Johnston would have made a more explicit finding if he had been requested to do so by defendant. Under the circumstances here considered, we hold that Judge Johnston\u2019s findings of fact constituted a sufficient basis for the admission of the evidence of volunteered statements attributed to defendant on the occasion of his arrest.\nDefendant lists thirty-one assignments of error. All have been considered. Assignments not discussed specifically herein do not disclose prejudicial error or require discussion.\nWe note that ten years imprisonment was the minimum punishment for the criminal offense charged in the second count of the bill of indictment. G.S. 90-111 (c), G.S. Yol. 2C, Replacement 1965. Moreover, ten years is the minimum punishment under G.S. 90-95(i), G.S. Vol. 2C, 1971 Cumulative Supplement. Error, if any, relating solely to the first count is of no avail to defendant since the sentences pronounced by Judge Johnston run concurrently.\nDefendant having failed to show prejudicial error, the verdicts and judgments will not be disturbed.\nNo error.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Ha/rris for the State.", "Wallace C. Harrelson, Public Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HAROLD EDWARD JACKSON\nNo. 55\n(Filed 15 March 1972)\n1. Indictment and Warrant \u00a7 12; Narcotics \u00a7 2\u2014 dispensing narcotics to minor \u2014 amendment of indictment \u2014 allegation of defendant\u2019s age\nThe trial court erred in allowing the State to amend an indictment for dispensing narcotics to a minor to include therein an allegation that defendant was \u201can adult person, age 25.\u201d\n2. Narcotics \u00a7 2\u2014 dispensing drugs to minor \u2014 indictment \u2014 age of defendant\nAn indictment for dispensing drugs to a minor need not allege the age of defendant or that defendant is an adult in order to charge an offense punishable under G.S. 90-111 (c), since the age of defendant is not an element of the crime but is relevant only on the subject of punishment.\n3. Narcotics \u00a7 5\u2014 adult\u2019s dispensation of drugs to minor \u2014 punishment \u2014 validity of statute\nStatute setting\u2019 forth the punishment for dispensing narcotic drugs when the dispensation is \u201cto a minor by an adult,\u201d G.S. 90-111 (e), is not unconstitutionally vague and indefinite in failing to define the words \u201cminor\u201d and \u201cadult\u201d as used therein.\n4. Infants \u00a7 1\u2014 \u201cminor\u201d defined\nExcept when otherwise provided by statute, a person, male or female, is a minor until he attains the age of twenty-one years.\n5. Criminal Law \u00a7 75\u2014 in-custody statements volunteered by defendant \u2014 absence of waiver of counsel\nStatements made by defendant to officers at his apartment after his arrest in October 1970 were properly admitted in evidence, notwithstanding defendant had not waived his right to counsel either in writing as provided by [former] G.S. 7A-457 or orally as provided by the Miranda decision, where the statements were not made in response to interrogation by the officers but were volunteered by defendant.\n6. Criminal Law \u00a7 75\u2014 in-custody statements \u2014 under influence of drugs\nDefendant was not under the influence of .drugs so as to render his in-custody statements incompetent if he knew what was being said and done on the occasion the statements were made.\n7. Criminal Law \u00a7 75 \u2014 \u25a0 in-custody statements \u2014 influence of drugs \u2014 sufficiency of court\u2019s findings\nThe trial court\u2019s findings that defendant was aware of the presence of the officers and that he understood his constitutional rights when he made statements to the officers at his apartment after his arrest were substantially equivalent to a finding that defendant understood what was being said and what was transpiring on that occasion, and failure of the court to make an explicit finding with reference to whether defendant was under the influence of drugs at that time did not .render incompetent testimony as to the statements made by defendant.\nAppeal by defendant from Johnston, J., December 4, 1970 Session of Guilford Superior Court, transferred for initial appellate review by the Supreme Court under general order of July 31, 1970, entered pursuant to G.S. 7A-31(b) (4), docketed and argued at Fall Term 1971 as No. 15.\nThe indictment on which defendant was tried contained two counts: The first count charged that defendant \u201cdid unlawfully, wilfully, and feloniously have in his possession and under his control the narcotic drugs, Cannabis, commonly known as Marijuana, and D-Lysergic Acid Diethylamide, commonly known as LSD, in violation of Chapter 90, Section 88, of the General Statutes of North Carolina.\u201d The second count charged that defendant \u201cdid unlawfully, wilfully and feloniously dipense to one Neil Cooper, age 15, the narcotic drugs, Cannabis, commonly known as Marijuana, and D-Lysergic Acid Diethylamide, commonly known as LSD, in violation of Chapter 90, Section 88, of the General Statutes of North Carolina.\u201d Each count alleged that the criminal offense charged therein was committed on September 27, 1970. Defendant entered pleas of not guilty.\nOn account of defendant\u2019s indigency, the court appointed the public defender to represent him.\nThe only evidence was that offered by the State. Summarized, except when quoted, it tends to show the facts narrated below.\nNorman Neil Cooper (Neil) testified that on a Saturday, which he thought was September 27, 1970, but in fact was September 26, 1970, defendant drove him to defendant\u2019s apartment and gave him \u201cthe drugs to sell for him.\u201d Specifically, defendant gave Neil \u201cLSD and Marijuana.\u201d Neil had first met defendant near the University of North Carolina at Greensboro campus in the early part of the summer, probably June. Neil had been going to this area for some months and had been buying drugs and using them. Drugs were \u201crampant.\u201d Neil saw defendant several times afterward, usually in the same vicinity. After arriving at defendant\u2019s apartment on the day in question, the two talked, and Neil voiced concern about getting caught. However, defendant \u201cwas always saying that if I did get caught, you know, that since I was a juvenile, I wouldn\u2019t get but eight years [months], and it wouldn\u2019t be that much of a sweat.\u201d Neil was not certain, but he believed the amount of marijuana defendant gave him was \u201ca half pound or a pound.\u201d He and defendant \u201cbagged\u201d the marijuana at defendant\u2019s apartment in several cellophane bags. Defendant gave him in addition, thirty \u201ctabs\u201d of LSD. An arrangement was established by which Neil would receive a percentage of the take. Neil did not recall discussing his age with defendant, but he thought he had mentioned to defendant that he went to Page High School. Neil was born on November 23, 1954, and in September, 1970, he was 15 years old.\nOn the morning of Tuesday, September 29, 1970, Neil was arrested at Page High School by Officer G. A. Cox of the Vice Division of the Greensboro Police Department. On Officer Cox\u2019s request, the assistant principal called Neil out of his biology class', and Cox arrested Neil in the hallway. Neil had called him fifteen minutes before. Nevertheless, Neil seemed surprised and reached in his pocket. Cox searched Neil\u2019s pocket and found four small pills. Neil confessed that, in addition, he had some marijuana in his boot. On the way to the police department Neil stated that he had more drugs at home. They went to Neil\u2019s home and found LSD, hashish, and marijuana. Altogether twelve \u201cpacks\u201d of marijuana were found, ten at Neil\u2019s home, two in his boots. Cox found \u201cnine small yellowish pills\u201d in a paper in a pipe bowl in Neil\u2019s closet. The four pills found in Neil\u2019s pocket were sent to the S.B.I. Crime Laboratory in Raleigh to be analyzed. Cox testified that the four pills sent away and the other nine \u201clooked exactly alike.\u201d One bag of marijuana was also sent. Cox compared this bag with the others not sent to Raleigh; he observed that they were wrapped alike and that they smelled \u201cjust alike.\u201d Neil was afraid to tell from whom he got the narcotics, but two days after his arrest he sent word that he wanted to talk. He stated that he had gotten the drugs from a person named Eddie, whom he described. He also described where this person lived.\nOfficer J. D. Heffinger of the Vice Division of the Greensboro Police Department, accompanied by Officer Cox, went to defendant\u2019s apartment about noon on Monday, October 12, 1970. He advised defendant of each of his Miranda rights. No questions were asked defendant \u201cat that time.\u201d However, defendant made several statements. He said \u201che knew we were coming down there . . . ever since he found out that a kid had been arrested for some stuff that he had gave him.\u201d Defendant stated to Heffinger that he had known \u201cthis boy by the name of Neil\u201d for several months, that Neil \u201clooked to be about twenty years old instead of fifteen\u201d (this before any mention to defendant of Neil\u2019s age), and that \u201che knew nothing of Neil selling drugs for him.\u201d Defendant stated to Heffinger that \u201che started fooling with Marijuana while he was overseas serving in Vietnam\u201d and that \u201cafter he was fired from his job here in Greensboro he had to make a living some way.\u201d Cox overheard defendant make these remarks to Heffinger, as he was investigating defendant\u2019s refrigerator, and he corroborated Heffinger\u2019s testimony.\nOfficer Robert D. Brewer, also of the Vice Division of the Greensboro Police Department, delivered the aforementioned bag of marijuana and four tablets of LSD to J. M. Dismukes, a chemist for the S.B.I. Crime Laboratory in Raleigh. Dismukes was found to be an expert in the analysis of marijuana and LSD. He testified that the sealed plastic bag contained \u201cgreen vegetable material\u201d which was, in his opinion, \u201chigh quality Marijuana,\u201d according to microscopic and chemical examinations. The four yellow tablets in the sealed yellow envelope, under chemical, ultraviolet, and chromatographic testing, were found to contain lysergic acid diethylamide. On the stand Dis-mukes asserted that the cellophane packages that had not been sent to Raleigh appeared \u201cidentical\u201d with the one that had been sent, \u201cbeing high quality manicured Marijuana.\u201d\nOfficer Cox was recalled to the stand to explain that his notation, \u201c7-29-70,\u201d on Exhibit 5 (LSD from Neil\u2019s pocket) and the same notation on Exhibit 2 (LSD found at Neil\u2019s home) were erroneous and should have been \u201c9-29-70.\u201d\nThe State was permitted to reopen its case to recall Officer Heffinger. He testified that on October 12, 1970, defendant stated that he was twenty-five years old and that his birthday was February 13,1945.\nEvidence offered at the voir dire hearing conducted to determine the admissibility of testimony as to statements made by defendant on October 12, 1970, in defendant\u2019s apartment, will be set forth in the opinion.\nThe jury returned a verdict of guilty as charged on each count. The court pronounced judgments of imprisonment on the verdicts as follows: On the first count, two years; on the second count, ten years. It was provided that the sentences run concurrently. Defendant excepted and appealed.\nAttorney General Morgan and Assistant Attorney General Ha/rris for the State.\nWallace C. Harrelson, Public Defender, for defendant appellant." }, "file_name": "0563-01", "first_page_order": 583, "last_page_order": 596 }