State v. RhinehartAnnotate this Case
148 S.E.2d 651 (1966)
267 N.C. 470
STATE v. Clarence Ray RHINEHART.
Supreme Court of North Carolina.
June 16, 1966.
*657 Atty. Gen. T. W. Bruton and Staff Atty. Theodore C. Brown, Jr., Raleigh, for the State.
Sanford W. Brown, Asheville, for defendant appellant.
PARKER, Chief Justice.
The dismissal by the court of the charge in the third count of each indictment against Rhinehart and West of receiving property knowing it to have been stolen will be treated as a verdict of not guilty on that count as to defendants Rhinehart and West. State v. Haddock, 254 N.C. 162, 118 S.E.2d 411.
In the instant case Rhinehart appealed to the Supreme Court. The week following his trial in the instant case, he appeared in the Superior Court of Jackson County, and entered a plea of guilty of breaking and entering and larceny, and was sentenced to imprisonment for a term of not less than four nor more than six years. With the consent of Rhinehart and his counsel, and at his request, this prison sentence as to him was suspended for five years upon certain conditions, one of said conditions being that Rhinehart withdraw his appeal from the prison sentence imposed upon him in the instant case at the February 1963 Term of Haywood County Superior Court, and serve that sentence. It appears from the record before us that he did withdraw his appeal, and began service of the prison sentence imposed at the February 1963 Term of Haywood County.
The law is well settled in this jurisdiction that the trial court in its discretion may suspend sentences in criminal cases upon reasonable conditions. 1 Strong, N. C. Index, Criminal Law, § 135. In criminal cases the right of appeal by a convicted defendant from a final judgment is unlimited in the courts of North Carolina. This right of appeal is a substantial right. G.S. § 15-180; State v. Hodge, 267 N.C. 238, 147 S.E.2d 881; State v. Darnell, 266 N.C. 640, 146 S.E.2d 800; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; State v. Blades, 209 N.C. 56, 182 S.E. 714. In State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9, we held that the execution of a sentence in a criminal action may not be suspended on conditions that conflict with the defendant's right of appeal. In State v. Patton, 221 N.C. 117, 19 S.E.2d 142, the Court held that while the trial judge has discretionary power to change the sentence in a criminal action during the term, where it appears of record that after prayer for judgment was continued, with defendant's consent, upon specified terms, the court, upon learning of defendant's intention to appeal, struck that judgment out and imposed a jail sentence, the cause will be remanded for resentence, since defendant's exercise of his right to appeal, C.S. 4650 (now G.S. § 15-180), should not prejudice him in any manner. In its opinion the Court said: "But the defendant's consent to the terms of the judgment did not constitute a waiver of his right of appeal for errors to be assigned." In our opinion, and we so hold, the suspension of the prison sentence in the Superior Court of Jackson County on the condition that Rhinehart withdraw his appeal in the instant case taken at the February 1963 Term of Haywood County Superior Court is not a reasonable condition, and is void, even though done at his request and with his consent, because his right to appeal in the instant *658 case should not be denied and because it would seem that under the circumstances Rhinehart's request and consent were not entirely free and voluntary.
The Attorney General states in his reply to Rhinehart's petition for a writ of certiorari, which we allowed on 19 October 1965, that Rhinehart, after serving 22 months of his sentence imposed at the February 1963 Term of Haywood County Superior Court, was paroled, and at the present time he is under the conditions of parole issued to him by the State of North Carolina. G.S. § 148-61.1 provides that under certain circumstances the order of parole of any parolee can be revoked, and if revoked the parolee shall thereafter be returned to the penal institution having custodial jurisdiction over him. The conditions of parole are a restraint on Rhinehart's liberty not shared by the public generally. He is still under the supervision of the parole authorities and subject to be remanded to prison if he fails to perform or violates the conditions of the parole. The fact that Rhinehart is on parole does not under the particular facts of this case, and particularly as we have issued a certiorari to review the validity of his trial in the instant case, prevent a review here by us of the validity of his trial at the February 1963 Term of Haywood County Superior Court. State v. Mathis, 109 N.C. 815, 13 S.E. 917, is factually distinguishable. In that case defendant was convicted of the crime of murder and there was a judgment of death against him, from which he appealed to the Supreme Court. Pending the appeal and before it was reached in its order to be heard and determined, the Governor commuted his sentence of death to life imprisonment. The defendant accepted the commutation and began his sentence of imprisonment. When his appeal was called in its order to be heard, the prisoner exhibited before the Court the order of commutation of his sentence signed by the Governor, signified his acceptance of the same, and prayed that the Court permit him to abandon his appeal. The Court permitted him to abandon his appeal, and his appeal was dismissed.
When the jury returned to the courtroom to render its verdict, the record shows the following as to Rhinehart:"Gentlemen of the Jury, have you agreed upon your verdict in the case of State vs. James West and State vs. Clarence Ray Rhinehart? "We have. "Do you find the defendants or either of them guilty or not guilty of Breaking and Entering and Larceny as charged in the respective Bills against them? "Guilty. "Is that your verdict as to the defendant Clarence Ray Rhinehart? "Rhinehart, we found not guilty of entering, but guilty of receiving, aiding and abetting. * * * * * * "Now as to the defendant Clarence Ray Rhinehart, did you find him guilty or not guilty of Breaking and Entering the Biltmore Dairy Farms Dairy Bar here in Haywood County on the 13th day of December, 1962, as charged in the first count in the Bill of Indictment? "Not guilty of Entering, but guilty of Aiding and Abetting."
Defendant assigns as error that the court committed error in not receiving the verdict as to Rhinehart, "Rhinehart, we found not guilty of entering, but guilty of receiving, aiding and abetting." Defendant contends this was a verdict that Rhinehart was not guilty of a felonious breaking and entry and not guilty of larceny as charged in the indictment. Defendant further assigns as error that the court further erred in then recharging the jury and in receiving a verdict that Rhinehart was guilty of a felonious breaking and entry and guilty of larceny as charged in the indictment.
A verdict is a substantial right. State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880. *659 But it is not complete until it is accepted by the court for record. State v. Gatlin, supra; State v. Perry, 225 N.C. 174, 33 S.E.2d 869.
Verdicts and judgments in criminal actions should be clear and free from ambiguity or uncertainty. The enforcement of the criminal law and the liberty of the citizen demand exactitude. State v. Jones, 227 N.C. 47, 40 S.E.2d 458.
In accepting or rejecting a verdict the trial judge cannot exercise unrestrained discretion. The trial judge should examine a verdict with respect to its form and substance to prevent a doubtful or insufficient verdict from becoming the record of the court, but his power to accept or reject the jury's finding is not absolute. State v. Perry, supra; State v. Bazemore, 193 N.C. 336, 137 S.E. 172.
The Court said in State v. Perry, supra:"When, and only when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict. State v. Arrington, 7 N.C. 571; State v. McKay, 150 N.C. 813, 63 S.E. 1059; State v. Bazemore, supra [193 N.C. 336, 137 S.E. 172]; State v. Noland, 204 N.C. 329, 168 S.E. 412; Queen v. DeHart, 209 N.C. 414, 184 S.E. 7."
This was quoted with approval in State v. Matthews, 231 N.C. 617, 58 S.E.2d 625.
When the jury returned to the courtroom, it stated it had agreed upon a verdict in the West and Rhinehart cases. It was then asked: "Do you find the defendants or either of them guilty or not guilty of breaking and entering and larceny as charged in the respective bills against them?" The jury replied: "Guilty." This verdict did not have a definite meaning free from ambiguity, for the reason that it is not clear whether the jury found both West and Rhinehart guilty, or only one of them guilty. The jury was then asked: "Is that your verdict as to the defendant Clarence Ray Rhinehart?" The jury replied: "Rhinehart, we found not guilty of entering, but guilty of receiving, aiding and abetting." Then, after the jury was asked as to West, it was asked this question: "Now, as to the defendant Clarence Ray Rhinehart, did you find him guilty or not guilty of breaking and entering the Biltmore Dairy Farms Dairy Bar here in Haywood County on the 13th day of December 1962, as charged in the first count in the Bill of Indictment?" The jury replied: "Not guilty of entering, but guilty of Aiding and Abetting."
Giving the above verdict as to Rhinehart a reasonable construction, it clearly appears that it is free from ambiguity or imperfection, and that the jury in terms and effect found Rhinehart not guilty of breaking and entering as charged in the first count of the indictment against him. The additional words, "but guilty of receiving, aiding and abetting," are not a part of the legal verdict on the first count in the indictment, and do not leave in doubt the verdict of acquittal on the first count in the indictment, and will be treated as mere surplusage. State v. Perry, supra. The verdict of acquittal of Rhinehart on the charge of breaking and entering as charged in the first count of the indictment should have been accepted by the trial court and recorded, and the court committed prejudicial error in not accepting it and directing the jury to retire and reconsider its verdict of acquittal on the first count in the indictment. State v. Matthews, supra, relied upon by the State, is factually distinguishable, for the reason that in that case the court then made inquiry of the jury in the following language: "Do you find the defendants guilty of an assault with a deadly weapon?" To which the foreman of the jury replied: "Yes. Guilty of aiding and abetting."
Giving the verdict as to Rhinehart tendered by the jury before it was *660 instructed by the judge to retire and reconsider its verdict a reasonable construction, it appears that the jury did not tender a verdict in Rhinehart's case as to the offense of larceny charged in the second count of the indictment. However, when it returned to the courtroom after it had reconsidered its verdict as to Rhinehart, it found as its verdict that Rhinehart was guilty of larceny as charged in the second count of the indictment against him, and the court accepted this verdict of guilty for record. It is established law by many of our decisions that where a verdict of guilty specifically refers to some of the counts, but not all, it amounts to an acquittal on the counts not referred to. 1 Strong, N.C. Index, Criminal Law, § 118, p. 798, where many of our cases are cited. That principle of law is not applicable here because the jury acquitted Rhinehart of the first count in the indictment.
Many of the assignments of error in the record do not comply with the rules of this Court. However, we have examined all defendant's assignments of error as to the evidence and as to the charge of the court, and none are deemed sufficiently prejudicial to warrant disturbing the verdict below that Rhinehart is guilty on the second count of the indictment charging larceny. One judgment was entered in the instant case.
The judgment is vacated, and the cause is remanded to the Superior Court of Haywood County to the end that the court below may (1) strike the verdict entered that Rhinehart is guilty as charged in the first count in the indictment, (2) record the one first tendered by the jury that Rhinehart is not guilty as charged in the first count in the indictment, and (3) pronounce judgment on the verdict against Rhinehart that he is guilty of larceny as charged in the second count of the indictment charging him with larceny. In pronouncing judgment on the verdict of guilty of larceny as recorded, the judge will give Rhinehart full credit for all the time he has served on the judgment in this case, with full credit for any good time that he has earned while serving the sentence.
This is a pauper appeal. However, it appears that Rhinehart is represented by a lawyer employed by himself, because there is nothing in the record to indicate that his present counsel of record was assigned by the court to represent him. Defendant's statement of his case on appeal was prepared by his attorney and service of it was accepted by the State solicitor. There is nothing to indicate that the solicitor served any countercase or exceptions to defendant's statement of case on appeal. Therefore, defendant's statement of case on appeal became the case on appeal. G.S. § 1-282. Parts of the case on appeal are referred to in the index as appearing on certain pages of the case on appeal. No such pages are in the case on appeal. In justice to the learned judge who tried this case, there is nothing to indicate that he ever saw the case on appeal.
Error and remanded.
MOORE, J., not sitting.
DENNY, Emergency Justice, and PLESS, J., took no part in the consideration or decision of this case.