State v. McIntyre

77 S.E.2d 698 (1953)

238 N.C. 305

STATE v. McINTYRE.

No. 147.

Supreme Court of North Carolina.

September 30, 1953.

*700 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

Hamrick & Hamrick, Rutherfordton, for defendant appellant.

WINBORNE, Justice.

Did the court err in denying defendant's motion to set aside the judgment rendered against him on the ground that the plea of nolo contendere entered by him was conditional, and so accepted by the court? This is the pivotal question, on which decision here turns. And in the light of well settled principles of law, applied to the facts disclosed by the record and case on appeal now before the court, the question must be answered in the negative.

The plea of nolo contendere has been interposed and accepted in numerous cases in the courts of North Carolina. The latest appeal in such case is State v. Cooper, N.C., 77 S.E.2d 695. There the principle has been re-stated in opinion by Ervin, J., in this manner: "The defendant's plea of nolo contendere constituted a formal declaration on his part that he would not contend with the State in respect to the charge, and was tantamount to a plea of guilty for the purposes of this particular criminal action. Consequently, the presiding judge acquired full power to pronounce judgment against the defendant for the crime charged in the indictment * * * when he allowed the solicitor to accept the plea tendered by the defendant." Applicable cases, including State v. Thomas, 236 N.C. 196, 72 S.E.2d 525, 528, are there cited, and need not be re-listed here.

But a plea of nolo contendere cannot be entered by a defendant as a matter of right. It is pleadable only by leave of the court. "Its acceptance by the court is entirely a matter of grace." See State v. Thomas, supra, and cases cited.

Indeed, the law does not sanction a conditional plea of nolo contendere. State v. Horne, 234 N.C. 115, 66 S.E.2d 665; State v. Thomas, supra.

In the light of these principles defendant contends that on the face of the record in the instant case, it appears that the trial court did not accept his plea, but proceeded to hear evidence and to pass upon the question of his guilt or innocence. True, the record does say that "upon hearing the evidence the court adjudged the defendant guilty". But in the light of the facts as found by the court, appearing in the record, as above set forth, it means no more than that, after defendant tendered the plea of nolo contendere, the court heard evidence before determining that the plea be accepted. No rule of procedure is prescribed by law governing the judge in making such determination.

The case of State v. Camby, 209 N.C. 50, 182 S.E. 715, relied upon by defendant *701 is distinguishable in factual situation from the present case.

Hence, the judgment from which appeal is taken will be

Affirmed.