State v. Mitchell

15 Citing cases

  1. State v. House

    295 N.C. 189 (N.C. 1978)   Cited 40 times
    Concluding that while a grand jury foreman signed an indictment that failed to explicitly indicate that at least twelve jurors concurred in the finding but stated that the jury found the indictment to be a true bill, such omission violated only a directory provision

    In State v. Avant, supra, the failure of the foreman to mark the names of the witnesses examined by the grand jury, as directed by the statute, was brought to the attention of the court in time to permit this to be done while the grand jury was still present in the courtroom and this was permitted. However, in State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963), speaking through Justice Parker, later Chief Justice, this Court held that the above quoted provision of the old G.S. 9-27 was directory and not mandatory, and the bill of indictment should not be quashed because of such omission, even though it was not brought to the attention of the trial judge in time to permit such correction. In State v. Calhoon, 18 N.C. 374 (1835), Chief Justice Ruffin speaking for the Court, said:

  2. State v. Brower

    289 N.C. 644 (N.C. 1976)   Cited 82 times
    Holding that in the absence of a request, "failure to give a limiting instruction is not error"

    Under these circumstances the jury obviously understood that the court was merely reviewing what the State's evidence tended to show, rather than expressing opinions that certain facts had been established. State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481 (1963), relied on by defendant, is factually distinguishable. Viewing the charge as a whole, it contains no expression of opinion in violation of G.S. 1-180.

  3. State v. Douglas

    268 N.C. 267 (N.C. 1966)   Cited 23 times

    The defendant's plea of not guilty controverted and put in issue the existence of every fact necessary to constitute the offense charged in the two warrants upon which he was tried. State v. Mitchell, 260 N.C. 235, 132 S.E.2d 481. This legal principle, intended to protect an accused, was turned against defendant by that portion of the judge's charge quoted above. It tended to ridicule, and thus impair the effect of defendant's plea of not guilty. It therefore constituted a violation of G.S. 1-180, which forbids a judge to express to the jury his opinion on the facts of the case he is trying. Power Company v. Black, 263 N.C. 811, 140 S.E.2d 540. The Attorney General, in his brief, concedes that this particular portion of the charge "appears to be an overstatement of defendant's contentions," and that "nothing would have been lost had the court omitted the statement."

  4. State v. Hodge

    270 N.C. App. 110 (N.C. Ct. App. 2020)   Cited 1 times

    Part of our reasoning was that "[a]t the time defendant entered his plea to the underlying substantive felony and proceeded to trial, there was pending against him an habitual felon indictment presumed valid by virtue of its ‘return by the grand jury as a true bill.’ " Id. at 339, 438 S.E.2d at 481 (quoting State v. Mitchell , 260 N.C. 235, 238, 132 S.E.2d 481, 482 (1963) ). Unlike Allen , our holding in Oakes depended on the existence of a true bill of indictment presumed valid.

  5. State v. Snipes

    767 S.E.2d 705 (N.C. Ct. App. 2014)

    However, in the overwhelming majority of cases where the appellate courts of this State have granted new trials based on the improper expression of judicial opinion, the erroneous expression occurred during the jury charge, not during jury selection. See, e .g., State v. Mason, 268 N.C. 423, 425, 150 S.E.2d 753, 755 (1966); State v. Mitchell, 260 N.C. 235, 238–39, 132 S.E.2d 481, 483 (1963); State v. Covington, 48 N.C.App. 209, 211–12, 268 S.E.2d 231, 233 (1980). The cases cited in Defendant's brief bear this out. See, e.g., State v. Minton, 228 N.C. 15, 17–18, 44 S.E.2d 346, 348–49 (1947); State v. Ellison, 226 N.C. 628, 631, 39 S.E.2d 824, 827 (1946); State v. Brinkley, 10 N.C.App. 160, 161, 177 S .E.2d 727, 728 (1970); State v. Patton, 2 N.C.App. 605, 606–07, 163 S.E.2d 542, 543–44 (1968).

  6. State v. Allen

    164 N.C. App. 665 (N.C. Ct. App. 2004)   Cited 10 times
    In State v. Allen, 164 N.C. App. 665, 596 S.E.2d 261 (2004), our Court addressed the consideration of prior convictions for habitual impaired driving.

    N.C. Gen. Stat. § 15A-623(c) (2003). See also State v. Mitchell, 260 N.C. 235, 237-38, 132 S.E.2d 481, 482 (1963) (holding an indictment is not fatally defective where the names of the witnesses to the grand jury are not marked). Accordingly, defendant's argument fails. Defendant makes two arguments regarding the predicate convictions supporting the habitual DWI indictment. N.C. Gen. Stat. § 20-138.

  7. State v. Wilson

    580 S.E.2d 386 (N.C. Ct. App. 2003)   Cited 11 times
    Concluding that “pain and suffering is an impermissible basis for restitution" under the applicable statutes

    Failure to comply with this provision does not vitiate a bill of indictment or presentment." See also State v. Mitchell, 260 N.C. 235, 237-38, 132 S.E.2d 481, 482 (1963) (holding an indictment is not fatally defective where the names of the witnesses to the grand jury are not marked). Accordingly, this assignment of error is overruled. II. Motion to Dismiss

  8. State v. Reynolds

    573 S.E.2d 774 (N.C. Ct. App. 2002)

    State v. Tudor, 14 N.C. App. 526, 528, 188 S.E.2d 583, 585 (1972); N.C.G.S. § 15A-623(c) (2001) ("[f]ailure to comply with this provision does not vitiate a bill of indictment or presentment"). While Defendant points to statements made by the trial court reflecting its awareness of similar errors made by the grand jury in other cases, there is no evidence in the record rebutting the presumption of validity accorded the "true bill" returned in this case. See State v. Mitchell, 260 N.C. 235, 238, 132 S.E.2d 481, 482 (1963). II Defendant next asserts the trial court erred in denying his motion to dismiss.

  9. State v. Oakes

    113 N.C. App. 332 (N.C. Ct. App. 1994)   Cited 17 times
    Holding that, where the defendant represented to undercover officers that the substance he sold them was cocaine, "the State was required to prove only that the substance which defendant sold the officers was not cocaine in order to establish a violation of G.S. § 90-95"

    We disagree. At the time defendant entered his plea to the underlying substantive felony and proceeded to trial, there was pending against him an habitual felon indictment presumed valid by virtue of its "return by the grand jury as a true bill." State v. Mitchell, 260 N.C. 235, 238, 132 S.E.2d 481, 482 (1963). This indictment sufficiently notified defendant that the State was seeking to prosecute him as a recidivist.

  10. State v. McLain

    307 S.E.2d 769 (N.C. Ct. App. 1983)   Cited 2 times

    In similar cases involving grand jury proceedings the courts have held that the applicable statutory provisions are directory, not mandatory. In State v. Mitchell, the court held that the provisions of G.S. 9-27 (now repealed) relating to the requirement that the foreman shall mark names of witnesses who appeared before the grand jury on the indictment were directory and not mandatory. 260 N.C. 235, 132 S.E.2d 481 (1963). See also State v. Lancaster, 210 N.C. 584, 187 S.E. 802 (1936) and State v. Tudor, 14 N.C. App. 526, 188 S.E.2d 583 (1972).