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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 22. Modes of prosecution.

Except in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment. But any person, when represented by counsel, may, under such regulations as the General Assembly shall prescribe, waive indictment in noncapital cases.

Cross References. - As to indictments and related instruments, see G.S. § 15A-641 et seq.

History Note. - The provisions of this section are similar to those of Art. I, § 12, Const. 1868, as amended in 1950.

Legal Periodicals. - For note on jurisdiction of courts-martial to try servicemen for civilian offenses, see 48 N.C.L. Rev. 380 (1970).

For note examining the development of constitutional protections against race and class discrimination in the selection of jurors, and policy considerations associated with extending these principles to foreman selection procedures, in light of State v. Cofield, 77 N.C. App. 699, 336 S.E.2d 439 (1985), see 64 N.C.L. Rev. 1179 (1986).

For article, "The Nature and Extent of the Exercise of Criminal Jurisdiction by the Cherokee Supreme Court: § 1823-1835," see 32 N.C. Cent. L. Rev. 27 (2009).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former Art. I, § 12, Const. 1868, before and after its amendment in 1950.

For history of this section, see State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

The principles of this section are dear to every free man; they are his shield and buckler against wrong and oppression, and lie at the foundation of civil liberty. They are declared to be the rights of the citizens of North Carolina and ought to be vigilantly guarded. State v. Moss, 47 N.C. 66 (1854); State v. Snipes, 185 N.C. 743, 117 S.E. 500 (1923).

The purposes of this section and N.C. Const., Art. I, § 23 are (1) to provide certainty so as to identify the offense, (2) to protect the accused from twice being put in jeopardy for the same offense, (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of guilty or nolo contendere, to pronounce sentence according to the rights of the case. State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968); State v. Foster, 10 N.C. App. 141, 177 S.E.2d 756 (1970).

Process of indictment by grand jury pursuant to G.S. § 15-144 adequately safeguards a defendant's rights under the Federal and North Carolina Constitutions. State v. Seward, 362 N.C. 210, 657 S.E.2d 356 (2008).

"Indictment". - The word "indictment" means indictment by a grand jury as defined by the common law. State v. Mitchell, 202 N.C. 439, 163 S.E. 581 (1932).

The term "indictment" is used in this section to signify a written accusation of a crime drawn up by the public prosecuting attorney and submitted to the grand jury, and by them found and presented on oath or affirmation as a true bill. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

Use of Short-Form Indictment. - Court of appeals rejected defendant's argument that the trial court violated his rights under U.S. Const., amends. V, VI, and XIV and N.C. Const., Art. I, §§ 19, 22, and 23 by entering a judgment convicting him of felony murder and sentencing him to life imprisonment without parole on the basis of a short-form indictment. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889 (2003).

Court of appeals rejected defendant's argument that the trial court violated his rights under U.S. Const., amends. V, VI, and XIV and N.C. Const., Art. I, §§ 19, 22, and 23, by entering a judgment convicting him of first degree rape and first degree sex offense on the basis of a short-form indictment. State v. Randle, 167 N.C. App. 547, 605 S.E.2d 692 (2004).

Short-form murder indictment is constitutional. State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005).

"Presentment". - As to the meaning of the term "presentment," see State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

It is an essential of jurisdiction that a criminal offense should be sufficiently charged in a warrant or an indictment. State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968).

A valid indictment is a condition precedent to jurisdiction of the superior court to determine the guilt or innocence of a defendant and to the authority of the court to render a valid judgment in the matter. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968); State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968).

This section requires a bill of indictment, unless waived, for all criminal actions originating in the superior court, and a valid bill is necessary to vest the court with authority to determine the question of guilt or innocence. State v. Bissette, 250 N.C. 514, 108 S.E.2d 858 (1959).

A valid indictment is essential to the jurisdiction of the court in a criminal case. State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975); State v. Johnson, 77 N.C. App. 583, 335 S.E.2d 770 (1985).

In a criminal prosecution where no presentment or impeachment is involved and no waiver of indictment has been made, a valid bill of indictment is essential to the jurisdiction of the court to try defendant for a felony. State v. Simpson, 302 N.C. 613, 276 S.E.2d 361 (1981).

Order denying defendant's motion to suppress evidence was void because the trial court was without jurisdiction to entertain and rule upon the motion as defendant had not been indicted or waived indictment at the time of the hearing. State v. Wolfe, 158 N.C. App. 539, 581 S.E.2d 117 (2003).

Remand for re-sentencing on felony child abuse inflicting serious physical injury was improper because the indictment failed to allege an essential element required for proof of that crime: that injury be inflicted by a parent or any other person providing care to or supervision of a child less than 16 years of age; however, the indictment and jury verdict did support a conviction for class A1 misdemeanor assault. State v. Locklear, 178 N.C. App. 732, 632 S.E.2d 516 (2006).

One charged with a capital felony may only be prosecuted on an indictment found by a grand jury. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

When Indictments Are Not Required. - The provisions of this section and N.C. Const., Art. I, § 24, when read together, empower the legislature to provide means other than indictments by grand juries for the trial of petty misdemeanors, with the right of appeal. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952); State v. Underwood, 244 N.C. 68, 92 S.E.2d 461 (1956).

The constitutional requirement that criminal trials must be upon a bill of indictment is subject to two exceptions: (1) The legislature may provide means other than indictments by grand juries for the trial of petty misdemeanors; and (2) when represented by counsel, an accused may, in all except capital cases, waive indictment under rules prescribed by the legislature. State v. Stevens, 264 N.C. 364, 141 S.E.2d 521 (1965).

Indictment on Appeal to Superior Court. - Until the legislature prescribes regulations governing waiver of an indictment in a case heard in superior court on an appeal from an inferior court, an accused in such a case may not waive indictment and be tried upon an information. State v. Harrington, 5 N.C. App. 622, 169 S.E.2d 32 (1969).

When Trial on Appeal in Superior Court May Be upon Original Accusation. - Where the General Assembly declares an offense below the grade of felony to be a petty misdemeanor and provides for prosecution of such offense in an inferior court upon accusation other than indictment, and confers upon such inferior court final jurisdiction of such prosecutions subject to the right of appeal to the superior court, the defendant on appeal from conviction in the inferior court may be tried in the superior court upon the original accusation without an indictment; but when there has been no trial in the inferior court, and the prosecution has merely been transferred to the superior court upon defendant's demand for jury trial, trial in the superior court upon the original warrant is a nullity, and a statute providing for such trial is unconstitutional. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

A defendant convicted in a recorder's court having final jurisdiction of the offense charged could be tried in the superior court on appeal upon the original warrant without an indictment. State v. Doughtie, 238 N.C. 228, 77 S.E.2d 642 (1953).

The superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the superior court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor. State v. Hall, 240 N.C. 109, 81 S.E.2d 189 (1954); State v. Morgan, 246 N.C. 596, 99 S.E.2d 764 (1957); State v. Cofield, 247 N.C. 185, 100 S.E.2d 355 (1957); State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973); State v. Caldwell, 21 N.C. App. 723, 205 S.E.2d 322 (1974).

Waiver of Indictment in Non-Capital Cases. - One charged with a noncapital felony or with a misdemeanor may be tried initially in the superior court only upon an indictment, except when he is represented by counsel he may be tried upon information signed by the prosecuting attorney when written waiver of indictment by defendant and his counsel appears on the face of the information. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

A person charged with the commission of a misdemeanor cannot be tried initially in the superior court except upon an indictment found by a grand jury, unless he waives indictment in accordance with regulations prescribed by the legislature. State v. Norman, 237 N.C. 205, 74 S.E.2d 602 (1953).

By virtue of this section an accused in a criminal proceeding, when represented by counsel, may, in all except capital cases, waive indictment under rules prescribed by the legislature. State v. Harrington, 5 N.C. App. 622, 169 S.E.2d 32 (1969).

Substantial Alteration of Indictment. - In a case in which defendant appealed her conviction for negligent child abuse, the appellate court concluded that the trial court committed reversible error during the trial by permitting the State to amend the indictment. The amendment, which constituted a substantial alteration, allowed the jury to convict defendant of conduct not alleged in the original indictment and found by the grand jury. State v. Frazier, - N.C. App. - , 795 S.E.2d 654 (2017), review denied, 2017 N.C. LEXIS 317 (2017).

An indictment must clearly and positively identify the person charged with the commission of the offense; omission of the name of the defendant, or a sufficient description if his name is unknown, in the body of the indictment, is a fatal and incurable defect. State v. Simpson, 302 N.C. 613, 276 S.E.2d 361 (1981).

All Essential Elements of Offense Must Be Charged. - An indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. State v. Stokes, 274 N.C. 409, 163 S.E.2d 770 (1968).

All of the essential elements of the offense must be alleged in an indictment charging a statutory offense. State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975); State v. Johnson, 77 N.C. App. 583, 335 S.E.2d 770 (1985).

Short Form Murder Indictment Lacking Elements of Premeditation and Deliberation Upheld. - The court rejected the defendant's argument that because the indictment failed to allege two essential elements of first degree murder, i.e., premeditation and deliberation, his conviction of first degree murder based thereon violated Article I, §§ 19, 22 and 23 of the North Carolina Constitution. The court found that the defendant had adequate notice of the charge against him, as North Carolina has for nearly 100 years authorized the use of the short form murder indictment as sufficient to allege the elements of premeditation and deliberation, and the jury was properly required to find those elements beyond a reasonable doubt. State v. Holder, 138 N.C. App. 89, 530 S.E.2d 562 (2000).

An indictment is constitutionally sufficient if it apprises defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in case of conviction. State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978).

If an indictment charges the offense in a plain, intelligible and explicit manner and contains averments sufficient to enable the court to proceed to judgment, and to bar a subsequent prosecution for the same offense, it is sufficient. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

Offenses Which Indictment Will Support. - Where the indictment was insufficient to allege attempted first degree murder because the indictment on its face failed to include the essential element of malice aforethought, but the indictment was sufficient to allege voluntary manslaughter, the case could be remanded based on the jury's verdict for sentencing and entry of judgment for attempted voluntary manslaughter. State v. Bullock, - N.C. App. - , 566 S.E.2d 768 (2002).

Remand for sentencing and entry of judgment for attempted voluntary manslaughter was appropriate because, although the indictment against defendant for attempted first-degree murder failed to include the essential element of malice aforethought, the jury's guilty verdict of attempted first-degree murder necessarily meant that they found all of the elements of the lesser-included offense of attempted voluntary manslaughter. State v. Wilson, 236 N.C. App. 472, 762 S.E.2d 894 (2014).

Use of Statutory Language. - An indictment for a statutory offense is sufficient as a general rule when it charges the offense in the language of the statute. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

Aggravating Circumstances for the Death Penalty. - Heinous, atrocious, or cruel aggravating circumstance under G.S. § 15A-2000(e)(9) was argued to be unconstitutionally vague and overbroad, and that that vagueness could not be cured through appellate narrowing after Ring; although the issue was not raised in the lower court so as to be properly addressed on appeal, the highest court found the issue to be in the public interest, addressed the issue to further develop its jurisprudence under N.C. R. App. P. 2, and determined that the circumstance was constitutional under the Sixth Amendment because (1) the pattern jury instructions included language approved by the Court that narrowed the definition of the circumstance, and (2) the appellate review of the circumstance as submitted to the jury did not make the appellate court a "co-finder of fact" with the jury. State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005).

Aggravating Circumstances of Capital Offense Need Not be Alleged. - The defendant's murder indictment complied with the requirements of this section and did not violate his constitutional rights; because defendant had notice that he was charged with first degree murder and the elements thereof, as well as his eligibility for the death penalty, the State was not required to allege the supporting aggravating circumstances. State v. Holman, 353 N.C. 174, 540 S.E.2d 18 (2000), cert. denied, 534 U.S. 910, 122 S. Ct. 250, 151 L. Ed. 2d 181 (2001), cert. denied, - N.C. - , 619 S.E.2d 854 (2005).

No Requirement to Instruct Indicting Grand Jury on Elements of Crime. - A court is not required to instruct the indicting grand jury on the elements of the crime in question. State v. Treadwell, 99 N.C. App. 769, 394 S.E.2d 245 (1990).

An indictment returned by a grand jury not legally constituted is not a valid indictment. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968).

Dismissal - Where Indictment Is Invalid. - When the indictment charging defendant with the commission of crime is invalid, defendant's motion to dismiss the action for want of jurisdiction should be allowed. State v. Beasley, 208 N.C. 318, 180 S.E. 598 (1935).

While defendant abandoned error as to one of the six challenged indictments filed against him, each alleging charges of first-degree sexual offense, the trial court erred in failing to dismiss the remaining five upon defendant's motion as fatally defective, given that they erroneously charged two similar but distinct crimes and effectively charged neither. State v. Hill, 185 N.C. App. 216, 647 S.E.2d 475 (2007), rev'd, 362 N.C. 169, 655 S.E.2d 831 (2008), State v. Hill, 185 N.C. App. 216, 647 S.E.2d 475 (2007).

Same - Where Proceedings Are Invalid. - This section means action by the grand jury according to the practice at common law, and does not permit open hearings before the grand jury. Thus, where the court sent for the grand jury and permitted the solicitor to examine a State's witness in open court before the grand jury, after the grand jury had returned two identical bills of indictment against the defendant, submitted on successive days, "not a true bill," and thereafter the solicitor submitted another identical bill to the grand jury which was returned "a true bill," defendant's verified plea in abatement and motion to quash, made before pleading, should have been allowed, and upon appeal from the court's denial of the motion the judgment would be reversed, with leave to the solicitor to send another bill before a different grand jury, if so advised. State v. Ledford, 203 N.C. 724, 166 S.E. 917 (1932).

Where defendant was tried at a special term of criminal court upon an indictment returned by a grand jury drawn for the special term, but there was no order by the Governor that a grand jury be drawn for such term as provided by former G.S. § 7-78, defendant's motion in arrest of judgment, made for the first time in the Supreme Court upon appeal, would be allowed pursuant to this section. State v. Baxter, 208 N.C. 90, 179 S.E. 450 (1935). See also, State v. Boykin, 211 N.C. 407, 191 S.E. 18 (1937).

It is competent to send as many bills of indictment as may be necessary to the grand jury to get before them necessary witnesses and evidence from which they may decide the propriety of submitting the accused to trial. State v. Lewis, 226 N.C. 249, 37 S.E.2d 691 (1946); State v. Mercer, 249 N.C. 371, 106 S.E.2d 866 (1959).

Assault with Deadly Weapon. - A justice of the peace had no jurisdiction of an assault with a deadly weapon except to bind the defendant over, and by the provisions of this section, the superior court could proceed to trial only upon indictment duly found and returned. State v. Myrick, 202 N.C. 688, 163 S.E. 803 (1932). See also, State v. Clegg, 214 N.C. 675, 200 S.E. 371 (1939).

Attempted Murder Indictment. - Where defendant's indictment for attempted first degree murder was deficient, under N.C. Const., Art. I, § 22 and G.S. § 15-144, because it omitted phrase "and of his malice aforethought," the appellate court, after defendant was convicted by a jury of attempted first degree murder, arrested the judgment and remanded the matter for sentencing and the entry of judgment for attempted voluntary manslaughter, which the indictment supported; the failure of the criminal pleading to charge the essential elements of the stated offense was an error of law that could be corrected upon appellate review even though no corresponding objection, exception, or motion was made in the trial division. State v. Bullock, 154 N.C. App. 234, 574 S.E.2d 17 (2002), appeal dismissed, 357 N.C. 64, 579 S.E.2d 396 (2003), cert. denied, 540 U.S. 928, 124 S. Ct. 338, 157 L. Ed. 2d 231 (2003).

Where the original indictment charging defendant with attempted first-degree murder was constitutionally and statutorily sufficient to provide jurisdiction, allege attempted voluntary manslaughter, and was not fatally defective, no manifest necessity existed to declare a mistrial over defendant's objections, the State was barred from re-indicting defendant on attempted murder or manslaughter and the trial court erred by denying defendant's motion to dismiss the subsequent indictment. Therefore, defendant's double jeopardy rights were violated by his subsequent indictment, prosecution, trial, and conviction of attempted first-degree murder. State v. Schalow, - N.C. App. - , 795 S.E.2d 567 (2016).

Kidnapping. - An indictment charging that defendant "unlawfully, did feloniously and forcibly kidnap" a person named was not defective for failure to charge additionally that the victim was forcibly carried away against her will. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

A preliminary hearing is not a constitutional requirement nor is it essential to the finding of an indictment. State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145 (1972).

Motion to Suppress Properly Denied. - Because defendant's initial seizure and incarceration were not unconstitutional, the trial court did not err in denying defendant's motion to suppress the evidence seized from defendant's person. State v. Hocutt, 177 N.C. App. 341, 628 S.E.2d 832 (2006).

Habitual Felon Indictment. - - The State of North Carolina in pursuing a habitual felon indictment could not rest on an assertion that defendant committed an offense on a date that it never presented to the grand jury. This would have been a gross violation of defendant's right to grand jury presentment. State v. Langley, - N.C. App. - , - S.E.2d - (June 20, 2017).

Applied in State v. Brown, 21 N.C. App. 87, 202 S.E.2d 798 (1974); State v. Tatum, 44 N.C. App. 77, 259 S.E.2d 774 (1979); State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003); State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004); State v. Price, - N.C. App. - , 611 S.E.2d 891 (2005).

Cited in State v. Hyman, 164 N.C. 411, 79 S.E. 284 (1913); State v. Pulliam, 184 N.C. 681, 114 S.E. 394 (1922); State v. Midyette, 45 N.C. App. 87, 262 S.E.2d 353 (1980); State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981); State v. Carson, 320 N.C. 328, 357 S.E.2d 662 (1987); State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991); State ex rel. Thornburg v. Lot & Bldgs. at 800 Waughtown St., 107 N.C. App. 559, 421 S.E.2d 374 (1992); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Snyder, 343 N.C. 61, 468 S.E.2d 221 (1996); State v. Hall, 131 N.C. App. 427, 508 S.E.2d 8 (1998), aff'd, 350 N.C. 303, 513 S.E.2d 561 (1999); State v. Price, - N.C. App. - , 611 S.E.2d 891 (2005); State v. De La Sancha Cobos, 211 N.C. App. 536, 711 S.E.2d 464 (2011); State v. McCulloch, - N.C. App. - , 756 S.E.2d 361 (2014).

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