State v. Gurkins , 19 N.C. App. 226 ( 1973 )

198 S.E.2d 448 (1973) 19 N.C. App. 226

STATE of North Carolina
v.
Jeston Hanson GURKINS.

No. 732SC504.

Court of Appeals of North Carolina.

August 22, 1973.

Atty. Gen. Robert Morgan by Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.

Edgar J. Gurganus, Williamston, for defendant-appellant.

MORRIS, Judge.

Defendant first assigns as error the failure of the trial judge to quash the warrant in this case on the ground that it was issued only after incriminating evidence was unlawfully obtained from the defendant and also the failure of the trial court to conduct a voir dire examination and make findings of fact upon defendant's motion to quash. It is well settled in this State that a motion to quash does not lie unless it appears from an inspection of the face of the warrant or bill of indictment that no crime is charged or that the warrant or indictment is otherwise so defective that it will not support a judgment. A court, in ruling on the motion, is not permitted to consider extraneous evidence and when the defect must be established by evidence aliunde the record, the motion must be denied. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). It appears from the record in this case that defendant was charged in a warrant proper in form with operating a motor vehicle while under the influence of intoxicating liquor and because the trial court is not permitted to go outside the record, it was clearly not error for the court to refuse to conduct a voir dire before denying defendant's motion.

Defendant next contends that the trial court failed to make findings of fact and conclusions of law following the voir dire examination held upon defendant's motion to suppress evidence obtained as a result of an illegal arrest and in failing to suppress such evidence. Upon defendant's motion to suppress, the trial court properly held a voir dire examination. At its termination, however, the court failed to make any findings of fact but simply overruled defendant's objection.

"When conflicting evidence is offered at a voir dire hearing held to determine the admissibility of evidence, the trial judge must make findings of fact to show the basis of his rulings on the admissibility of the evidence offered. State v. Moore, 275 N.C. 141, 166 S.E.2d 53. While it is the better practice for the trial judge to make findings of fact and enter them in the record in all such cases, where, as here, there was no conflict in the evidence at the voir dire, the trial judge's failure to make findings of fact is not fatal. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Keith, 266 N.C. 263, 145 S.E.2d 841." State v. Basden, 8 N. C.App. 401, 407, 174 S.E.2d 613, 617 (1970).

No evidence was offered by the defendant on voir dire, and only Patrolman Parrish testified for the State. As was said in Basden, it would have been better practice for the trial judge to make and enter findings of fact in the record; but because no conflicting evidence was offered on voir dire, the trial judge's failure to do so was not fatal.

It is not clear from the record just what evidence defendant was seeking to suppress. However, it is clear from the evidence presented on voir dire that the liquor bottle taken from the glove compartment of defendant's wrecker was not taken incident to a lawful arrest or volunteered by defendant and should have been ruled inadmissible. Yet no evidence concerning the liquor bottle was introduced at trial until defendant testified on cross-examination by the State that he purchased a pint of Ancient Age liquor and that "Trooper Parrish said he removed that pint of liquor from my vehicle in Stokes." No objection was raised by defense counsel nor upon Patrolman Parrish's testimony on rebuttal that the bottle of liquor was almost empty. Any error committed by the trial court in denying defendant's motion to suppress was subsequently rendered harmless by defendant's own testimony and failure of defense counsel to object, and this assignment of error is overruled.

Equally without merit is defendant's contention that there was insufficient evidence to take the case to the jury. With respect to defendant's argument that the State presented no evidence as to defendant's two previous convictions before resting its case, defendant in his own testimony admitted to two prior convictions for driving under the influence. See G.S. § 15-173.1. This assignment of error is overruled.

We have also examined defendant's assignments of error relating to the trial court's charge to the jury and find no prejudicial error.

No error.

BRITT and PARKER, JJ., concur.