Public-domain · open source
OpenJurist

280 N.C. 127

185 S.E.2d 141

State v. Cumber

Supreme Court of North Carolina

Decided December 15, 1971

Supreme Court of North Carolina · decided 1971-12-15

Key passage — most relied on by later courts

“. . . [I]n conformity with the well established rule of appellate courts, we will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the court below. [Citation omitted.]”

quoted by 6 later decisions, including State v. Crews, City of Durham v. Manson

“The law does not require trial judges to be clairvoyant and omniscient. Neither does it permit defense counsel to play hide and seek with objections. The trial court, upon inquiry, is entitled to know the ground upon which an objection is interposed; and if counsel specifies one ground, he cannot be heard to urge a different ground on appeal.”

quoted by 2 later decisions, including Cates v. Wilson, 199 N.C. App. 756 - State v. GROSHOLZ

Relies on Irvine v. People of State of California · State v. Colson · Edelman v. People of State of California

Good law ✅— No negative treatment on recordhow we know

Decided 1971-12-15

How this case has been cited

Cited by 42 later decisions — most recently November 2017 · most notably State Ex Rel. Commissioner of Insurance v. North Carolina Rate Bureau (1980), State v. Brown (1987)

42 state decisions

14019711980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

HUSKINS, Justice.

¶1 In establishing the North Carolina Court of Appeals, defining its jurisdiction, and providing a system of appeals, the General Assembly followed the basic principle that there should be only one trial on the merits and one appeal on the law, as of right, in every case. Consequently, double appeals as of right-first to the Court of Appeals and then to the Supreme Court — are authorized only in three instances specified by G.S. 7A-30. Here, defendant seeks to qualify for a double appeal as of right on the first ground listed in that statute, i.e., involvement of a substantial question arising under the Constitution of the United States or of this State.

¶2 The record reveals that after the two school principals had identified the typewriter, adding machine, radios and other property owned by the schools, and after one of the principals had testified that he observed these items in defendant’s station wagon on the night of 27 September 1970, the State tendered the various items in evidence. This tender evoked the following colloquy:

“Mr. Cobb [the solicitor] : I would like to introduce this evidence and these exhibits into evidence.
“Mr. Newton [defense counsel] : Objection.
“Court: On what grounds?
“Mr. Newton: Especially the last two at Bradley Creek; been no positive identification of those, just common items.
“Court : Overruled.
“Mr. Cobb : I would like to introduce them at this time.
“Court: All right.”

¶3*131 Defendant contends in this Court, as he did in the Court of Appeals, that the foregoing objection required the trial judge to conduct a voir dire to determine whether the officers obtained the stolen property by an illegal search of his station wagon in violation of the Fourth and Fourteenth Amendments to the Federal Constitution. The Court of Appeals rejected this contention and so do we.

¶4 Defendant’s objection was directed specifically to an alleged lack of proper identification of some of the stolen property. Had an allegedly illegal search and seizure been the basis of the objection, counsel would certainly have said so when answering the court’s inquiry. The law does not require trial judges to be clairvoyant and omniscient. Neither does it permit defense counsel to play hide and seek with objections. The trial court, upon inquiry, is entitled to know the ground upon which an objection is interposed; and if counsel specifies one ground, he cannot be heard to urge a different ground on appeal. “When the objection is made, the court may, in all cases, require the grounds of objection to be stated, and only those stated can be made the subjects of exception and review.” State v. Wilkerson, 103 N.C. 337, 9 S.E. 415 (1889). As aptly stated in Gidney v. Moore, 86 N.C. 484 (1882), “although a general objection to obnoxious evidence will be sustained when no ground has been assigned, if upon any ground it ought to have been rejected, yet when the ground of the objection can be fairly inferred from the record as understood by the parties at the time, another cannot be assigned in the reviewing court. The ground of exception is to be deemed on appeal a part of the exception itself.”

¶5 When these legal principles are applied to the record in this case, it is abundantly clear that the constitutional question upon which defendant relies to sustain his double appeal as of right was not raised in the trial court. The trial judge had no occasion to conduct a voir dire on the question of search and seizure, and his failure to do so was not error. That belated constitutional question was injected for the first time on appeal to the Court of Appeals and therefore came too late. It was not properly before that court and is not now properly before us. “The attempt to smuggle in new questions is not approved. Irvine v. California, 347 U.S. 128, 129. Appellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed *132 upon in the trial court. State v. Jones, 242 N.C. 563, 564, 89 S.E. 2d 129. This is in accord with the decisions of the Supreme Court of the United States. Edelman v. California, 344 U.S. 357, 358.” State v. Grundler, 251 N.C. 177, 111 S.E. 2d 1 (1959). Accord, State v. Colson, 274 N.C. 295, 163 S.E. 2d 376 (1968).

¶6 Having failed to show involvement of a substantial constitutional question which was raised and passed upon in the trial court and properly brought forward for consideration by the Court of Appeals, no legal basis exists for this appeal to the Supreme Court, and it must therefore be dismissed.

¶7 Appeal dismissed.

/280/nc/127 · .json · Public domain