State v. Branner

• Decision Date: 22 December 1908
• Citation: 63 S.E. 169,149 N.C. 559
• Parties: STATE v. BRANNER et al.
• Court: North Carolina Supreme Court

63 S.E. 169

149 N.C. 559

STATE v. BRANNER et al.

Supreme Court of North Carolina

December 22, 1908

Appeal from Superior Court, Swain County; Peebles, Judge.

Henry Branner and another were charged with interrupting and disturbing a meeting for public worship, and, having been discharged by the court on its own motion, the state appeals. Dismissed.

The doctrine of variance applies to evidence introduced to establish guilt, and not to evidence received after a plea of guilty.

Hayden Clement and J. W. Bailey, for the State.

Shepherd & Shepherd, for appellee.

WALKER J.

The defendants were indicted in two counts: First, for willfully interrupting and disturbing a meeting of people held for the purpose of public worship in "Bradley's Chapel Church"; and, second, for being intoxicated and conducting themselves in a rude and disorderly manner at Bradley's Chapel, it being a place where people are accustomed to assemble for the purpose of divine worship, and while they were so assembled for such purpose. The bill sufficiently charges the commission of a criminal offense. The defendants entered a plea of guilty. The case then states that the court heard the evidence; and it appearing that the disturbance occurred on a certain day at a Sunday school held at Bradley's Chapel, which was used for preaching, but that there was no preaching on that day, and the court being of the opinion that there was a fatal variance between the allegations and the proof, ordered the plea of "guilty" to be stricken out and a verdict of "not guilty" to be entered, which was accordingly done and the defendant discharged. The state excepted and appealed.

A confession of the defendant may be either express or implied. An express confession is where he pleads guilty, and thus directly and in the face of the court admits the truth of the accusation. This is called a "plea of guilty," and is equivalent to a conviction. 1 Chitty's Cr. Law, 429. The court then has nothing to do but to award judgment as upon a verdict of guilty (4 Blackstone, 329), but, of course may hear evidence for the purpose of enabling it to determine the measure of punishment. Clark's Cr. Procedure, p. 372. In Green v. Commonwealth, 12 Allen (Mass.) 172, the court said, when referring to the subject: "If a jury would be warranted in finding a person guilty of a particular offense charged in an indictment, the party accused may confess such offense by a plea of guilty; in other words, a plea of guilty may be supported whenever a verdict of a jury finding a party guilty of a crime would be held valid. A conviction of crime may be had in two ways: Either by the verdict of a jury, or by the confession of the offense by the party charged by a plea of guilty, 'which is the highest conviction.' The effect of a confession is to supply the want of evidence. When, therefore, a party pleads guilty to an indictment, he confesses and convicts himself of all that is duly charged against him in that indictment"-citing 2 Hawkins, P. C. Ch. 31, 433, § 120; 4 Blk. Com. 362. The defendant will generally, but not necessarily, be allowed to retract his plea of guilty and plead not guilty. A defendant may also withdraw his plea of not guilty, even after it is recorded, and plead guilty. The motion to retract in either case is addressed to the sound discretion of the court, and a retraction is not a matter of right. Clark's Cr. Proc. p 373; Mastronada v. State, 60 Miss. 86. A plea of guilty is not only an admission of guilt, but is a formal confession of guilt, before the court in which the defendant is arraigned. It is in this respect altogether different from a full and voluntary confession formally made before a magistrate or to some other person. The latter is merely evidence of guilt. Clark's Cr. Proc., supra. When the plea of guilty is formally entered to an indictment, no evidence of guilt is required in order to proceed to judgment, for the defendant has himself supplied the necessary proof. He has convicted himself. The judge could therefore, have entered judgment upon the plea in this case in like manner as he could have done if there had been a formal verdict of guilty returned by a jury upon evidence. While this is true, the court had the power to set aside the plea of guilty if it was entered unadvisably or improvidently, or for any other good reason, but it could not, after striking out the plea, enter a verdict of not guilty or discharge the defendant, and, in doing so, the court committed an error. State v. Curtis, 28 N.C 247. When the plea of guilty was stricken out, a new trial should have been awarded, and the defendant held to plead to the indictment again. In State v. Curtis, supra, it is...