holding that "[w]hen an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose."
How later courts described this case
- holding that "[w]hen an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose."
- holding a trial court was in error when its instructions ignored whether the officers' actions were lawful when the evidence for the defendants tended to show the officers' actions were unlawful
- emphasizing "the constitutional principle that a person's home is his castle," "in accordance with the ancient rules of the common law" (citations omitted)
- explaining that a district court judgment is "completely annulled"
Written by the judges who cited it.
The opinion
Bobbitt, C.J.,
dissenting as to Oxidine.
The warrant charges that Oxidine wilfully contributed to the delinquency of Karen by harboring and providing lodging for her and wilfully concealing her from officers when he knew that “they (the officers) had petitions for said Karen Torpey for delinquency, runaway and truancy.” The warrant does not charge that Karen was delinquent in any respect. The only accusation is that officers had petitions which charged her with “delinquency, runaway and truancy.”
It is unnecessary, as expressly provided in Subsection (b) of G.S. 110-39, “that there shall have been a prior adjudication of delinquency or neglect of the child in order to proceed under this statute.” This simply means that an adjudication of delinquency in an independent proceeding for that purpose is not a prerequisite to a prosecution under the statute.
In my opinion, in a prosecution under G.S. 110-39, it is incumbent upon the State to allege and to prove that the named child is a delinquent in respect of some particular condition of delinquency and that the accused wilfully contributed to the child’s delinquency in that respect.
Applying these well-established legal principles, the warrant does not sufficiently charge a violation of G.S. 110-39. Hence, this Court, ex mero motu, should arrest the judgment. State v. Walker, 249 N.C. *517 35, 38 , 105 S.E. 2d 101, 104 . The arrest of judgment on the ground the warrant is fatally defective would not bar further prosecution on a valid warrant. State v. Sossamon, 259 N.C. 374 , 130 S.E. 2d 638 .
While I would base decision on the insufficiency of the warrant, ■¡the following should be noted.
The only reference to the verdict in the record is the recital in the judgment that defendant had been “found guilty of the offense of Cont/Del/Minor which is a violation of N.C. G.S. 110-39 and of the grade of Misdemeanor ...” Assuming the verdict was returned by the jury as stated in the quoted recital, the significance thereof must be determined by reference to the allegations, the facts in evidence, and the instructions of the court. State v. Thompson, 257 N.C. 452, 457 , 126 S.E. 2d 58, 61 . “(T)he verdict should be taken in connection with the issue being tried, the evidence, and the charge of the court.” Davis v. State, 273 N.C. 533, 539 , 160 S.E. 2d 697, 702 .
In charging the jury, the court’s final instruction (mandate) was as follows: “Now, when you come to consider the case of Britton Oxidine, Jr., if the State has satisfied you and satisfied you beyond a reasonable doubt that on or about May 4, 1969, that Karen Torpey was a delinquent minor; that is, under the age of sixteen, as ‘delinquency’ and ‘minor’ have been explained to you, and that on or about that date he aided, encouraged or contributed in harboring or concealing her and that harboring or concealment amounted to a furtherance of her delinquency, if the State has so satisfied you of these elements then it would be your duty to find him guilty.” (My italics.)
Earlier in the charge the court had defined “delinquency” in the following three sentences: “ ‘Delinquency’ means failure, omission, violation of duty, or it may be the state or condition of one who has failed to perform his duty. A delinquent child is an infant of not more than specified age who has violated the law or who is incorrigible. ‘Incorrigible’ with respect to juvenile offenders means unmanageable by parents or guardians.”
Under the foregoing circumstances, the meaning and significance of the verdict are at best imprecise.
I do not defend or condone the activities or conduct of Oxidine as disclosed by the record before us. Nor do I suggest that the evidence is insufficient to have supported a verdict of guilty in an error-free trial on a sufficient warrant. However, I regard firm adherence to sound legal principles as to criminal pleading of greater importance than the effect this decision will have upon Oxidine.
Shabp, J., joins in this dissenting opinion.