STATE of North Carolina
v.
Joe Dean ROBERTS.
No. 26.
Supreme Court of North Carolina.
October 13, 1971.*648 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Parks H. Icenhour, for the State.
Lila Bellar, Charlotte, for defendant appellant.
SHARP, Justice:
Since defendant pled guilty his appeal presents for review only the question whether error appears on the face of the record proper. State v. Higgs, 270 N.C. *649 111, 153 S.E.2d 781; State v. Newell, 268 N.C. 300, 150 S.E.2d 405. Suffice it to say, no error appears. The bill of indictment is in all respects regular; defendant's plea was understandingly and voluntarily made; and the sentence imposed is within the statutory limits. See State v. Dawson, 268 N.C. 603, 151 S.E.2d 203; State v. Darnell, 266 N.C. 640, 146 S.E.2d 800.
This case is just one more example of the manner in which the unlimited right of appeal, which the State now gives to every criminal defendant, is "being perverted at the whim of those who have nothing to lose." State v. Darnell, supra at 641, 146 S.E.2d at 801.
In defendant's brief filed in this court, his counsel purported to move in arrest of judgment upon the unsupported assertion contained therein that the bill of indictment against defendant was "returned by a grand jury which contained as a member thereof a person who had theretofore pleaded nolo contendere to an indictment charging a felony and that said juror was therefore unqualified to be a grand juror." The Court will not consider this statement, which is not supported by the record. Elliott v. Goss, 254 N.C. 508, 119 S.E.2d 192. However, even if it be true and were considered, a charge that a member of the grand jury which returned the indictment against defendant was disqualified cannot be urged in arrest of judgment. In the first place, a motion in arrest of judgment can be based only upon some fatal defect appearing upon the face of the record. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416. Secondly, "[a]ll exceptions to grand jurors on account of their disqualifications shall be taken before the petit jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not taken at that time shall be deemed to be waived." G.S. § 9-23.
The judgment of the Superior Court is
Affirmed.