State v. Weddington , 28 N.C. App. 269 ( 1976 )

PARKER, Judge.

Defendant contends the Court erred in not granting his motion to dismiss for failure to provide a speedy trial. The record shows the following. Defendant was arrested on 15 November 1974; counsel was appointed on 20 November 1974; preliminary hearing scheduled for 12 December 1974 was postponed because police officers were not available, another preliminary hearing scheduled for'9 January 1975 was postponed because the District Attorney was not ready; defendant then waived a preliminary hearing on 9 January 1975; defendant moved for speedy trial on 31 January 1975; case was tried on 1 April 1975; defendant spent a total of 137 days in jail awaiting trial. After a voir dire hearing, the court made findings of fact, concluded defendant had not been denied a speedy trial, and denied defendant’s motion. In this we find no error. Defendant makes no contention that the delay in his trial was purposeful and we find the period of the delay was not in itself excessive. See, State v. Brown, 282 N.C. 117, 191 S.E. 2d 659 (1972). Furthermore, defendant concedes that he was not prejudiced as a result of the delay.

Defendant contends the court erred by overruling his objections and allowing into evidence the pistol and gloves found in his pocket as a result of the search of his person made at the time of his arrest. He contends the arrest was unlawful and therefore the warrantless search of his person was illegal. This contention is without merit. The statute in effect when defendant was arrested, G.S. 15-41(2), provided that a peace officer may without warrant arrest a person “[w]hen the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.” [For cognate statute in effect and applicable to criminal proceedings begun on and after 1 September 1975, see G.S. 15A-401 (b) (2).] Here, the arresting officer had reasonable ground to believe that the automobile which defendant was driving had been stolen; only moments before, his dispatcher had so reported to him by radio. Defendant was driving and in control of the vehicle, and if not immediately taken into custody could easily have evaded arrest. These circumstances were amply sufficient to furnish the officer reasonable ground to believe defendant had committed a felony in stealing the automobile and that he would evade arrest if not immediately taken into custody. Indeed, the officer would have been derelict in his duty had he not arrested defendant forthwith. It follows that the search of defendant’s person was incident to a lawful arrest and the fruits of the search were properly admitted in evidence.

Defendant assigns error to the admission in evidence over his objection of testimony of Officer Cochran concerning defendant’s confession that he had broken into the Kiser house and stolen a TV set. Before this testimony was admitted, the court conducted a voir dire hearing at which both Officer Cochran and defendant testified. At the conclusion of the hearing the court made findings that before Officer Cochran questioned defendant concerning the offenses for which he was tried, Cochran advised defendant of his constitutional rights, and defendant freely, knowingly, and voluntarily waived those rights. These findings were fully supported by competent evidence. Defendant does not now contend that the requirements of Miranda were not fully met. His contention is that his receipt of the Miranda warnings did not, per se, make his confession admissible, and, still contending his arrest was illegal and relying on Brown v. Illinois, 422 U.S. 590, 45 L.Ed. 2d 416, 95 S.Ct. 2254 (1975), he contends that any statement he made was the fruit of an illegal arrest. Holding as we do that defendant’s arrest was legal, we find the cited case inapposite and find no error in admitting the evidence concerning defendant’s confession.

We have examined all of defendant’s remaining assignments of error and find no error in defendant’s trial or in the judgments from which appeal was taken.

No error.

Judges Hedrick and Arnold concur.