STATE
v.
Ernest Roosevelt ST. CLAIR.
No. 505.
Supreme Court of North Carolina.
May 1, 1957.*842 George B. Patton, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
C. M. Llewellyn, Ann Llewellyn Greene, Marshall B. Sherrin, Jr., John R. Boger, Jr., Concord, for defendant appellant.
WINBORNE, Chief Justice.
The appellant presents on this appeal, in the main, two assignments of error, the first based upon exception one to the denial of his motion to quash the warrant; and the second upon exception two to the denial of his motion for judgment as of nonsuit.
As to the first assignment of error, it does not appear of record that motion to quash was made in the County Recorder's Court where defendant pleaded not guilty and was tried,the motion being first made in Superior Court, on appeal thereto from judgment of County Recorder's Court. Hence the motion for consideration as a matter of right was not made in apt time. Decisions of this Court are uniform in holding that a motion to quash the warrant or bill of indictment, if made after plea of not guilty is entered, is addressed to the discretion of the trial court. The exercise of such discretion is not reviewable on appeal. State v. Gibson, 221 N.C. 252, 20 S.E.2d 51, citing State v. Jones, 88 N.C. 671, 672; State v. Pace, 159 N.C. 462, 74 S.E. 1018; State v. Beal, 199 N.C. 278, 154 S.E. 604. See also State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623.
Moreover, defendant moves in this Court that he be allowed to amend his motion to quash the warrant by showing a further defect therein, to wit: That the affidavit of the complaining witness upon which the order of arrest was based does not allege that defendant operated a motor vehicle while under the influence of intoxicating liquor, but that on the contrary it is not alleged that defendant did anything at all.
In this connection no point was made at the time that the name of defendant is not mentioned in the affidavit upon which the warrant on which defendant stands charged is based, it appears upon the face of the record that his name does appear in the warrant and that the warrant expressly refers to the affidavit.
In State v. Poythress, 174 N.C. 809, 93 S.E. 919, 920, opinion by Walker, J., this Court, speaking of a similar case, had this to say:
"The complaint did not allege any offense against the defendant, as his name was not mentioned therein, but the warrant refers distinctly to the complaint, and, besides, was physically annexed to it. When this is the case, it may supply any omission or deficiency in the former, and if the two, when considered together as parts of the same proceeding, sufficiently inform the defendant of the accusation made against him, nothing else is necessary to be done. We so held in State v. Yellowday, 152 N.C. 793, 67 S.E. 480, where it was said: `The second objection is that the allegations of the complaint or affidavit were not inserted in the warrant; but this is untenable, as the warrant clearly refers to the affidavit and called upon the defendant to answer its allegations. This is all that the law requires in such a case'citing State v. Winslow, 95 N.C. 649; State v. Davis, 111 N.C. 729, 16 S.E. 540; State v. Sharp, 125 N.C. [628] 634, 34 S.E. 264; State v. Yoder, 132 N.C. [1111] 1113, 44 S.E. 689; to which we add State v. Sykes, 104 N.C. 694, 10 S.E. 191."
To like effect is State v. Sawyer, 233 N.C. 76, 62 S.E.2d 515.
Therefore, as stated by this Court in State v. Outlaw, 242 N.C. 220, 87 S.E. 2d 303, in the light of the holding in the case of State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133, such defect would not be fatal, citing G.S. § 15-153. The affidavit *843 and warrant were almost identical in form with those in the instant case.
Even so, this Court again calls attention to what is said in State v. Hammonds, supra, with respect to drafting warrants. Indeed the use of the form of affidavit in which the person to be charged is not named, should be discontinued. Time and costs now expended would be saved, and the administration of justice expedited.
But it is contended that the act, Chapter 82 of 1945 Session Laws entitled "An Act to Permit Certain Police Officers of the City of Concord to Issue Warrants" under authority of which the police lieutenant purported to act, is unconstitutional in that it is violative of Article II, Section 29 of the Constitution of North Carolina, which declares, among other things, not here pertinent, that "the General Assembly shall not pass any local, private, or special act or resolution relating to the establishment of courts inferior to the Superior Court," or "relating to the appointment of justices of the peace." However reference to the act fails to show that it relates to the establishment of courts, or to appointment of justices of the peace. Hence it is apparent that the question of the constitutionality of the act is not properly raised.
Moreover, a defendant may waive a constitutional right relating to a matter of mere practice or procedure. See State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642, opinion by Parker, J.
Now as to the denial of motion for judgment as of nonsuit, the evidence offered on the trial below, as shown in case on appeal, taken in light most favorable to the State, as is done in considering such motion, is sufficient to take the case to the jury, and to support a verdict of guilty of operating a motor vehicle upon public highway while under the influence of intoxicants in violation of G.S. § 20-138.
Since it appears that judgment was suspended on conditions stated, and defendant has not consented thereto, the judgment is stricken out, and the cause remanded for proper judgment on verdict returned. State v. Harvey, 242 N.C. 111, 86 S.E.2d 793; State v. Coleman, 243 N.C. 109, 89 S.E.2d 791.
Cause remanded for proper judgment.