State v. Old

156 S.E.2d 756 (1967)

271 N.C. 341

STATE of North Carolina v. Grady Worth OLD, Nos. 66-CrS-7, 66-CrS-9, 66-CrS-10.

No. 7.

Supreme Court of North Carolina.

September 20, 1967.

*757 T. W. Bruton, Atty. Gen., George A. Goodwyn, Asst. Atty. Gen., for the State.

John T. Chaffin, Elizabeth City, for defendant appellant.

HIGGINS, Justice.

The case on appeal as agreed, and as certified by the Clerk, shows that a life sentence for murder was imposed on the defendant in the case in which he was charged with assault on Taylor, and a sentence of imprisonment for 24 months was imposed in the case in which he was charged with the murder of Williams.

In each of the three cases, the record shows (1) a verdict of not guilty was directed by the Court, (2) a plea of guilty was entered by the defendant, and (3) a verdict of guilty was found by the jury. Patently, the record can speak the truth only with respect to one of the verdicts. If the Court entered a verdict of not guilty, that ended the prosecution. If the defendant entered a plea of guilty, no issue remained for jury determination. Only if (a) and (b) are eliminated may the jury intervene.

Here involved is a judgment of life imprisonment for first degree murder. Before dealing with the merits of the appeal, we must first have before us an accurate record of the proceedings in the Superior Court. Any error, mistake, or omission in the records of that Court must be corrected in that Court.

"It is universally recognized that a court of record has the inherent power and *758 duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty. 14 Am.Jur., Courts, sections 141, 142, and 143, page 351, et seq.; 21 C.J.S. Courts, § 227b, page 423; McIntosh, N.C. Practice and Procedure, Second Edition, Volume 2, section 1711, page 161; Galloway v. McKeithen, 27 N.C. 12, 42 Am.Dec. 153; Phillipse v. Higdon, 44 N.C. 380; Mayo v. Whitson, 47 N.C. 231; Foster v. Woodfin, 65 N.C. 29; Walton v. Pearson, 85 N. C. 34; Brooks v. Stephens, 100 N.C. 297, 6 S.E. 81; Ricaud v. Alderman & Flanner, 132 N.C. 62, 43 S.E. 543; Norfolk S. R. R. Co. v. Reid, 187 N.C. 320, 121 S.E. 534; Oliver v. Board of Com'rs of Johnston County, 194 N.C. 380, 139 S.E. 767; State v. Tola, 222 N.C. 406, 23 S.E.2d 321; State v. Maynor, 226 N.C. 645, 39 S.E.2d 833; Gagnon v. United States, 193 U.S. 451, 24 S. Ct. 510, 48 L. Ed. 745. This Court has quoted with approval many times the statement contained in the opinion of Ruffin, J., in the case of Walton v. Pearson, supra, which is as follows: `It is the duty of every court to supply the omissions of its officers in recording its proceedings and to see that its record truly sets forth its action in each and every instance; and this it must do upon the application of any person interested, and without regard to its effect upon the rights of parties, or of third persons; and neither is it open to any other tribunal to call in question the propriety of its action or the verity of its records, as made. This power of a court to amend its records has been too often recognized by this Court, and its exercise commended, to require the citation of authoritiesother than a few of the leading cases on the subject. See Phillipse v. Higdon, 44 N.C. 380; Foster v. Woodfin, 65 N.C. 29; Mayo v. Whitson, 47 N.C. 231; Kirkland v. Mangum, 50 N.C. 313.'"

The foregoing statement is quoted from the opinion of Denny, J., (later C. J.) in State v. Cannon, 244 N.C. 399, 94 S.E.2d 339. The opinion points out the method by which errors may be corrected.

A record of a case certified to us by the Superior Court must be accepted as importing verity and, unless shown otherwise on its face, it must be presumed to be complete. Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734. However, if a case on appeal contains in material parts of the record proper such inconsistent and contradictory statements so that obviously if one material recital is correct, others therein equally material cannot be, then it becomes the duty of this Court, under its supervisory power, to remand the action to the Superior Court with directions that notice be given to counsel and parties, and after hearing, to certify any corrections necessary to make the record conform to the facts. In a criminal case, the solicitor should be given notice as well as defense counsel, and the defendant should be before the Court. It is the duty of the Superior Court to correct its own records in the manner pointed out by this Court in State v. Cannon, supra, and State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262.

The action is remanded to the Superior Court and when the corrections are made and certified, they shall be attached to and made a part of the case on appeal.

Remanded.