State v. Cooper

Annotate this Case

77 S.E.2d 695 (1953)

238 N.C. 241


No. 75.

Supreme Court of North Carolina.

September 23, 1953.

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

S. J. Pegram and William J. Cocke, Asheville, for defendant appellant.

ERVIN, Justice.

We deem it advisable to make certain observations at the outset. The plea of nolo contendere entered by the defendant and accepted by the solicitor with the approval of the presiding judge was absolute in character. This being true, there is no basis for the contention of the defendant that his plea of nolo contendere was a conditional one with the ultimate issue of his guilt or innocence to be determined by the presiding judge. It necessarily follows that the decisions condemning conditional pleas of nolo contendere are not germane to the case in hand. State v. Horne, 234 N.C. 115, 66 S.E.2d 665; State v. Camby, 209 N.C. 50, 182 S.E. 715.

It conduces to clarity of understanding to consider the exceptions in the inverse order of their taking. For this reason, we now address ourselves to the exception to the judgment.

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, i. e., a felonious assault and battery with a deadly weapon with intent to kill resulting in serious injury as defined by G.S. § 14-32, when he allowed the solicitor to accept the plea tendered by the defendant. State v. Thomas, 236 N.C. 196, 72 S.E.2d 525; State v. Jamieson, 232 N.C. 731, 62 S.E.2d 52; State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79; State v. Stansbury, 230 N.C. 589, 55 S.E.2d 185; State v. Ayers, 226 N.C. 579, 39 S.E.2d 607; State v. Beasley, 226 N.C. 580, 39 S.E.2d 607; State v. Parker, 220 N.C. 416, 17 S.E.2d 475; State v. Burnett, 174 N.C. 796, 93 S.E. 473, L.R.A.1918A, 955.

G.S. § 14-32 provides that "any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony and shall be punished by imprisonment in the State prison or be worked under the supervision of the State Highway and Public Works Commission for a period not less than four months nor more than ten years." G.S. § 148-42 specifies that "The several judges of the superior court are authorized in their discretion in sentencing prisoners for a term in excess of twelve months to provide for a minimum and maximum sentence". G.S. § 148-26 stipulates that "all able-bodied prisoners of the State" shall be compelled to work at gainful employments during their imprisonment.

These statutory provisions fully sanction the judgment. The term "hard labor" as used in the judgment does not *698 signify labor of unusual severity. It merely means the compulsory or involuntary labor required by law of prisoners of the State. Ex parte Brede, D.C., 279 F. 147; Brown v. State, 74 Ala. 478; In re Danton, 108 Kan. 451, 195 P. 981; State v. Huffstetler, 213 S.C. 319, 49 S.E.2d 585.

Since the witnesses for the State testified to facts sufficient to show that the defendant committed the felonious assault and battery charged in the indictment, there is no factual foundation for the alternative assumptions underlying the motion for an acquittal and the motion for a conviction of a less aggravated assault than that charged. The legal standing of the defendant would not be bettered a single whit, however, even if the State's evidence did afford him a factual foundation for one or the other of his assumptions. The court did not hear the State's testimony to determine either the fact or the degree of the defendant's guilt. It was not incumbent upon the State to offer proof upon either of those matters. This is so because a plea of nolo contendere admits for the purposes of the particular case all of the elements of the offense charged against the accused, and gives the court complete power to sentence the accused for such offense. State v. Beasley, supra; State v. Ayers, supra; State v. Burnett, supra. The court heard the evidence of the State as well as that of the defendant merely to enable it to exercise a sound discretion in determining the extent of the punishment. In passing from this phase of the appeal, we note that the defendant did not apply to the court at any time for permission to withdraw his plea.

This brings us to the exception to the admission of the testimony of the State showing that several months before the time mentioned in the indictment the defendant wilfully discharged a firearm in a public eating place. We accept as valid the contention of the defendant that this evidence would have been incompetent if the State had offered it against the defendant in a trial on the merits necessitated by a plea of not guilty.

When it received this evidence, the court was not conducting a trial in the ordinary sense of the word. It was hearing testimony on a plea of nolo contendere for the sole purpose of determining what punishment it should impose upon the defendant.

In making a determination of this nature after a plea of guilty or nolo contendere, a court is not confined to evidence relating to the offense charged. It may look anywhere, within reasonable limits, for other facts calculated to enable it to act wisely in fixing punishment. Hence, it may inquire into such matters as the age, the character, the education, the environment, the habits, the mentality, the propensities, and the record of the person about to be sentenced. State v. Stansbury, supra. In so doing the court is not bound by the rules of evidence which obtain in a trial where guilt or innocence is put in issue by a plea of not guilty. People v. McWilliams, 348 111. 333, 180 N.E. 832.

For the reasons given, the judgment is


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