1. Hunting and Fishing--taking bear with bait--aiding and
abetting--insufficient allegations
A warrant for taking bear with bait was properly dismissed
where the warrant charged that defendant “did aid and abet
Richard G. McCormack by taking bear with the use and aid of bait”
because the phrase “by taking bear with use and aid of bait”
simply describes the way in which defendant aided and abetted
McCormack, and does not specifically state the underlying offense
committed by McCormack for which defendant would be on trial
under the aiding and abetting theory. The aiding and abetting
language cannot be treated as surplusage because the warrant as
worded would then make no sense. N.C.G.S. § 113-294(c1).
2. Indictment and Information--defective warrant--amended--
fatal error not cured
A fatally defective warrant charging a misdemeanor was not
cured by an amendment in district court. Instead of issuing an
amendment, the State should have filed a statement of charges.
3. Statute of Limitations--misdemeanor--invalid warrant
Further prosecution for taking bear with bait was barred by
the statute of limitations where the warrant was dismissed an
ineffective. While the statute of limitations may be tolled upon
the issuance of a valid warrant, a void or invalid warrant does
not toll the statute and, while defective indictments may be
refiled within one year, no such exception exists for warrants.
Attorney General Michael F. Easley, by Assistant Attorney
General John G. Barnwell, for the State.
The Robinson Law Firm, by Leslie S. Robinson, for defendant-
appellee.
LEWIS, Judge.
[1]The only issue before us is the validity of the warrantallegedly charging defendant with the crime of taking be
ar with
bait, in violation of N.C. Gen. Stat. § 113-294(c1). Defendant was
convicted in district court but appealed to the superior court for
a trial de novo. Defendant then filed a motion to dismiss the
warrant as insufficient, which motion was granted. The State now
appeals.
To be sufficient, any charging instrument, whether an
indictment, arrest warrant, or otherwise, must allege all essential
elements of the crime sought to be charged. N.C. Gen. Stat. § 15A-
924(a)(5) (1999). The purpose of this requirement is to ensure
that a defendant may adequately prepare his defense and be able to
plead double jeopardy if he is again tried for the same offense.
State v. Westbrooks, 345 N.C. 43, 58, 478 S.E.2d 483, 492 (1996).
We conclude that the warrant here was insufficient because it did
not adequately apprise defendant of the specific offense with which
he was being charged.
The arrest warrant here charged defendant as follows:
[T]he defendant named above unlawfully,
willfully did aid and abet Richard G.
McCormack by taking bear with use and aid of
bait.
Ultimately, the "aid and abet" language is what renders this
warrant flawed. Specifically, the warrant charges that defendant
aided and abetted Richard G. McCormack, but it does not allege the
underlying offense that Mr. McCormack committed. The warrant doescite section 113-294(c1) as the statute defendant allegedly
violated. That statute makes it a misdemeanor to "take[],
possess[], transport[], sell[], possess[] for sale, or buy[] any
bear or bear part." N.C. Gen. Stat. § 113-294(c1). Significantly,
under the statute, each of the above acts constitutes a separate
offense. Id. The warrant here does not denominate which offense
or offenses Mr. McCormack committed.
In this context, the phrase "by taking bear with use and aid
of bait" is purely descriptive; it simply describes the way in
which defendant aided and abetted Mr. McCormack. Under an aiding
and abetting theory, defendant would be guilty of the offense
committed by Mr. McCormack. See State v. Polk, 309 N.C. 559, 567,
308 S.E.2d 296, 300 (1983) ("[A] person who is present and aids and
abets another in the commission of a criminal offense is as guiltyas the principal perpetrator of the crime."). But here, we do not
know what that offense is. As stated earlier, the statute cited in
the warrant criminalizes not only the taking of bear but also the
sale, possession, transportation, and buying of bear as well.
Perhaps defendant took the bear by bait and then Mr. McCormack sold
it. If so, under the aiding and abetting theory alleged in the
warrant, defendant would be guilty of the sale of bear -- not the
taking of it. On the other hand, perhaps defendant took the bear
with bait and then Mr. McCormack transported it. If so, under the
aiding and abetting theory, the alleged offense again would be the
transportation of the bear -- not the taking of it. Or perhaps
both Mr. McCormack and defendant played a role in taking the bear.
If so, then the charged offense would be the taking of the bear.
Quite simply, we just do not know because the warrant does not
specifically state the underlying offense allegedly committed by
Mr. McCormack for which defendant would be on trial under the
aiding and abetting theory.
The State responds that we should simply ignore the "aiding
and abetting" language. Because aiding and abetting is not a
substantive offense but just a theory of criminal liability,
allegations of aiding and abetting are not required in an
indictment or warrant. State v. Ainsworth, 109 N.C. App. 136, 142-
43, 426 S.E.2d 410, 414-15 (1993). And because it is not required,
the State argues the language may be treated as surplusage. We
completely agree; the "aiding and abetting" language could be
treated as surplusage here. Cf. Westbrooks, 345 N.C. at 57, 478S.E.2d at 492 (1996) ("Thus, the allegation of the indictment t
hat
defendant acted in concert . . . is an allegation beyond the
essential elements of the crime charged and is, therefore,
surplusage."). However, were we to do so, the warrant simply makes
no sense. All that would be left is the charge that "the defendant
named above unlawfully, willfully did by taking bear with use and
aid of bait." This no more saves the warrant than leaving the
"aiding and abetting" language in. The warrant is flawed either
way. Accordingly, we conclude the superior court judge properly
dismissed the warrant.
[2]We note that the State amended the warrant before trial in
the district court pursuant to N.C. Gen. Stat. § 15A-922(f). We
need not consider this amendment, however, because the original
warrant was fatally deficient. "[W]here the warrant does not
contain sufficient information to notify the defendant of the
nature of the crime charged and fails to contain even a defective
statement of the offense, it is fatally defective and cannot be
cured by amendment." State v. Bohannon, 26 N.C. App. 486, 488, 216
S.E.2d 424, 425 (1975). Instead of issuing an amendment, the State
should have filed a statement of charges to rectify the situation.
N.C. Gen. Stat. § 15A-922(b). For whatever reason, the State chose
not to do so.
[3]Finally, we point out that the result of our disposition
is that the statute of limitations has now run and defendant may
not be re-tried under a valid warrant or statement of charges.
N.C. Gen. Stat. § 15-1 prescribes a two-year statute of limitationsfor all misdemeanors except "malicious misdemeanors." Th
e alleged
offense here occurred on 15 November 1997, well over two years ago.
Our Supreme Court has affirmatively stated that this statutory
period is tolled upon the issuance of a valid warrant. State v.
Hundley, 272 N.C. 491, 493-94, 158 S.E.2d 582, 583-84 (1968). The
issuance of a void or invalid warrant, however, does not toll the
statute. Id. Our legislature has set forth a limited exception to
this two-year period: defective indictments may be refiled within
one year of dismissal. N.C. Gen. Stat. § 15-1. But this exception
only applies to indictments; no such exception exists for warrants.
Hundley, 272 N.C. at 493, 158 S.E.2d at 583. Accordingly, any
attempt to issue a new criminal pleading now would be barred by the
two-year statute of limitations.
Affirmed.
Judges WYNN and HUNTER concur.
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