Davis v. State, 575

• Decision Date: 01 May 1968
• Docket Number: No. 575,575
• Citation: 160 S.E.2d 697,273 N.C. 533
• Parties: Clifford Delain DAVIS v. STATE of North Carolina.
• Court: North Carolina Supreme Court

Page 697

160 S.E.2d 697

273 N.C. 533

Clifford Delain DAVIS v. STATE of North Carolina.

No. 575.

Supreme Court of North Carolina.

May 1, 1968.

Atty. Gen. T. W. Bruton and Staff Atty. Ralph H. White, Jr., Raleigh, for the State.

PARKER, Chief Justice.

We have examined the records and briefs in the first appeal in this case, which are of record in the office of the Clerk of the Supreme Court. On that appeal there was no assignment of error and no contention that the verdict rendered was invalid or improper or ambiguous and that the verdict did not support the judgment. Defendant appealed from the judgment of imprisonment imposed upon the first appeal.

This is stated in 1 Strong, N.C. Index 2d, Appeal and Error, § 26:

'An appeal is itself an exception to the judgment and to any matter appearing on the face of the record proper. A sole exception to the judgment or to the signing of the judgment likewise presents the face of the record proper for review. In either instance, review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form and supported by the verdict.'

The verdict here, as in all cases tried in our Superior Courts, appears on the face of the record proper. While the opinion on the first appeal did not discuss the verdict rendered in the instant case, the fact that we found no error in the trial was tacit affirmation that we had examined the record proper, and that the verdict was not invalid or ambiguous or uncertain but was definite and certain, and that the verdict rendered supported the sentence of imprisonment.

With respect to the question which the clerk asked the jury--'What say you, is he guilty of assault with intent to commit rape or not guilty?'--to which the jury merely responded 'Yes,' the defendant contends that 'The Presiding Judge should have sent the jury back into their chambers with instructions to bring out a verdict which was meaningful. However, he did not do this, and, instead, the Clerk put her own interpretation on what the jury verdict was and recorded it as a verdict of guilty of assault with intent to commit rape.' Defendant also contends 'that a poll would not cure a void verdict which has been suggested or dictated by the Clerk. * * * The jury, after having been told by the clerk in open court what their verdict should be, and having given in to the clerk in open court, would naturally answer the poll of the jury in favor of the verdict they had been committed to by the dictation of the Clerk.' Defendant further contends that the clerk's interpretation of the meaningless jury verdict has deprived him of his right to trial by jury as guaranteed by the Sixth Amendment to the United States Constitution and Article I, section 13, of the North Carolina Constitution.

To support his argument, defendant relies on the decisions of State v. Godwin, 260 N.C. 580, 133 S.E.2d 166, and State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880.

State v. Godwin, supra, is factually distinguishable. In that case the defendant pleaded not guilty. The record discloses the following in respect to the verdict:

'Upon the coming in of the verdict, the Jury says: 'We decided that he is guilty of an Assault on this person.'

'COURT: Do I understand that the Jury finds the Defendant guilty of an Assault with a Deadly weapon, inflicting serious injuries, not resulting in death, as charged in the Bill of Indictment? Do you mean to say that?

'JOROR: Yes, sir.

'COURT: So say you all?

'JURY: Yes, sir, we agree.

'CLERK: Do you, the Jury, find the Defendant guilty of Assault with a Deadly Weapon with Intent to Kill, inflicting serious injuries not resulting in death? Jury: Yes.

'COURT: Guilty as charged in the Bill of Indictment?

'JURY: Yes.'

Upon the verdict the court sentenced the defendant to prison. Defendant assigned as error the verdict as rendered upon which the judgment was based on the ground that the trial judge told them in effect what their verdict should be. This Court agreed that that contention was good and awarded defendant a new trial. The decision was clearly right. In the first place the judge told the jury in effect what the verdict should be, and in the second place, so far as the record of the trial discloses, which is on file in the office of the Clerk of the Supreme Court, the jury was not polled.

State v. Gatlin, supra, is also factually distinguishable. The case on appeal as reported in our Reports has this statement:

'The defendant Wayne Anderson is not guilty of manslaughter and that the defendant Reeves Gatlin is guilty of driving. Without further statement by the jury the court directed this inquiry to them, 'And guilty of manslaughter?' To which the juror replied, 'Yes.' To the foregoing the defendant objects and excepts.'

The Supreme Court was clearly right in awarding a new trial on the ground that the judge improperly suggested to the jury what their verdict should be. The Court in its opinion states this language:

'(W)e have no hesitancy in holding that the verdict 'Guilty of driving' is no crime and is not responsive to the charge in the indictment. Hence the trial judge had the discretionary power to give further instructions to the jury and order that they retire and give further consideration to the matter, and bring in a proper verdict. But the judge was without authority to suggest to the jury what their verdict should be.'

So far as is shown by the record, which is on file in the office of the Clerk of the Supreme Court, the jury was not polled in the Gatlin case.

These principles of law are well settled in this State: While a verdict is a substantial right, it is not complete until accepted by the court for its records. State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651; State v. Perry, 225 N.C. 174, 33 S.E.2d 869. Verdicts in criminal cases ought to be clear and free from ambiguities and uncertainties, State v. Rhinehart, supra; State v. Jones, 227 N.C. 47, 40 S.E.2d 458. The enforcement of the criminal law and the liberty of citizens demands exactitude. State v. Jones, supra. In accepting or refusing 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 and insufficient verdict from becoming the record of the court, but his power to accept or refuse the jury's finding is not absolute. State v. Perry, supra; State v. Bazemore, 193 N.C. 336, 137 S.E. 172.

It is well settled in this jurisdiction that the verdict should be taken in connection with the issue being tried, the evidence, and the charge of the court. State v. Tilley, 272 N.C. 408, 158 S.E.2d 573; State v. Thompson, 257 N.C. 452, 126 S.E.2d 58; State v. Smith, 226 N.C. 738, 40 S.E.2d 363; State v. Cody, 225 N.C. 38, 33 S.E.2d 71; State v. Gregory, 153 N.C. 646, 69 S.E. 674.

From the opinion in the first appeal, State v. Davis, supra, and from the charge of the court as it appears in the record of this case which is on file in the office of the Clerk of the Supreme Court, it is shown that the court instructed the jury that they might return one of the following verdicts: Guilty of rape, guilty of rape with recommendation of life imprisonment, guilty of assault with intent to commit rape, guilty of assault with a deadly weapon, guilty of assault on a female (defendant being a male person over the age of 18 years), or not guilty. As appears from the 'Memorandum Opinion and Order' transmitted to us by Judge Larkins, and from the original record in this case which is on file in the office of the Clerk of the Supreme Court, when the jury returned with its verdict and after the clerk, according to the practice in this jurisdiction, called over the names of the jury and asked them if they had all agreed on a verdict, the jury replied, 'Yes.' The clerk then said to the jury, 'Who shall speak for you?' The jury replied, 'Mr. Eldridge.' The clerk then told the defendant, according to the practice in our courts, to stand up and hold up his right hand, and then the clerk addressed the jury as follows: 'Ladies and Gentlemen of the Jury, look upon the prisoner. What say you, is he guilty of the felony of rape whereof he stands indicted or not guilty?' That was the proper question for the clerk at that stage of the proceeding to address to the jury. The jury replied, 'Not guilty Of that.' (Emphasis ours.) It is clear and manifest that that means that the jury found the defendant not guilty of the capital offense of rape, but it does not mean that the jury found a verdict of not guilty of all the charges. Immediately thereafter the clerk addressed the jury, 'What say you, is he guilty of assault with intent to commit rape or not guilty?' The jury replied, 'Yes.' The clerk then said to the jury, 'Harken to your verdict, as the Court recordeth it. You say Clifford Delain is guilty of assault with the intent to commit rape, whereof he stands charged?' The jury replied, 'Yes.' The clerk then said, 'So say you all?' Each juror answered, 'Yes.' Immediately after that had been done, defendant requested that the jury be polled and the record before us reads as follows: 'Upon inquiry by the Clerk, each juror answered that he found for his verdict that the defendant, Clifford Delain Davis, was guilty of assault with intent to commit rape, that that was his verdict, and that he did still assent thereto.'

When the jury answered 'Yes' to the question propounded by the clerk, 'what say you, is he guilty of assault with intent to commit rape or not guilty?' it was certainly not a verdict of acquittal on that charge of an assault with intent to commit rape. The trial judge should examine a verdict with respect to its form and substance to prevent a doubtful and insufficient verdict from becoming a record of the court. When the clerk said to the jury, 'Harken to your...