State v. Ellis , 32 N.C. App. 226 ( 1977 )

CLARK, Judge.

After entry of the jury verdicts, all defendants made motions “in arrest of judgment” on the following ground: The foreman of the grand jury by his signature attested that each bill of indictment was “A true bill,” which failed to comply with the requirement of G.S. 15A-644(a) (5) that the signature of the foreman must attest “the concurrence of 12 or more grand jurors in the finding of a true bill of indictment.”

A motion in arrest of judgment is one made after verdict and to prevent entry of judgment and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972); State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971). A motion in arrest of judgment for a defect appearing on the face of the record proper traditionally could be made at any time, even in the Supreme Court. State v. Stokes, 274 N.C. 409, 163 S.E. 2d 770 (1968); State v. McKeon, 223 N.C. 404, 26 S.E. 2d 914 (1943).

The new Criminal Procedure Act, G.S. Ch. 15A, has changed some aspects of motions practice. Official Commentary, G.S. Ch. 15A, Art. 52. The alleged defect in the present case is on the face of the record proper and therefore, had it been a fatal defect at common law, could have been raised in a motion in arrest of judgment made at any time. However, under prior law there was no requirement that the foreman of a grand jury endorse the indictment. State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932). The requirement that the foreman sign the indictment attesting the concurrence of twelve or more grand jurors in finding a true bill and therefore the potential for a facial defect relevant to this statement arose only with the enactment of G.S. Ch. 15A. G.S. 15A-955 provides:

“The court on motion of the defendant may dismiss an indictment if it determines that:

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(2) The requisite number of qualified grand jurors did not concur in finding the indictment, . . .”

The challenge to the foreman’s statement at issue herein is in essence a challenge to the number of jurors concurring in the indictment. The motions of the defendants, though denominated “motions in arrest of judgment,” were motions to dismiss under G.S. 15A-955.

G.S. 15A-952 (b) (4) and (c) provide, with exceptions not relevant herein, that a motion to dismiss under G.S. 15A-955 “must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at the session for which trial is calendared, the motions must be filed on or before five o’clock p.m. on the Wednesday prior to. the session when trial of the case begins.” The items constituting the record oh appeal were not arranged “so far as practicable, in the order in which they occurred or were filed at the trial tribunal” as required by Rule 9 (b) (4), Rules of Appellate Procedure. The record on appeal does not disclose when arraignments of defendants were held. However, since the motions were made after the verdicts had been returned, they clearly were not made at or before the times of arraignments as required under G.S. 15A-952(b) (4) and (c). The defendants’ motions, not made in apt time, were properly denied. State v. Gaines, 283 N.C. 33, 194 S.E. 2d 839 (1973).

The defendants also assign as error the denial of their motions for nonsuit. Upon motion for nonsuit, all the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. See cases cited in 4 Strong, N. C. Index, Criminal Law, § 104 (3d Ed. 1976). We find that the evidence, though circumstantial, was sufficient to warrant its submission to the jury and to support the verdicts of guilty.

No error.

Judges Morris and Arnold concur.