State v. Kerley

Citation97 S.E.2d 876,246 N.C. 157
Decision Date01 May 1957
Docket NumberNo. 364,364
PartiesSTATE, v. Arville Tobias KERLEY.
CourtUnited States State Supreme Court of North Carolina

B. W. Blackwelder, Concord, for defendant-appellant.

Atty. Gen. George B. Patton and Asst. Atty. Gen. Harry W. McGalliard for the State.

BOBBITT, Justice.

The State's witnesses, Church and Crooks, testified that they had not previously known either Powell or Kerley. True, their testimony may have been less reliable by reason of their own admitted criminal records. Even so, their testimony was sufficient in all respects to support the verdict of guilty as charged. The weight to be given their testimony was for the jury. Hence, the motion for judgment of nonsuit was properly overruled.

However, we are constrained to hold that assignment of error No. 5, based on exception No. 8, is well taken.

We are not concerned here with the legal significance of Powell's plea of nolo contendere in a civil action or another criminal action against him. Winesett v. Scheidt, 239 N.C. 190, 79 S.E.2d 501; Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259; State v. Stone, 245 N.C. 42, 95 S.E.2d 77. The question presented here is whether Powell's plea of nolo contendere, considered as the equivalent of a confession of his guilt, is competent evidence against Kerley; and, if not, whether the solicitor, with the sanction of the court, used Powell's plea as evidence in such manner as to constitute prejudicial error.

If Powell had been separately tried and convicted or had pleaded guilty prior to Kerley's trial, the record of Powell's prior conviction or plea would not have been admissible against Kerley. Leroy v. Government of Canal Zone, 5 Cir., 81 F.2d 914; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890. Moreover, upon Kerley's separate trial, testimony that Powell had been convicted or had pleaded guilty to the same charge would not have been competent. Paine v. People, 106 Colo. 258, 103 P.2d 686; Leech v. People, 112 Colo. 120, 146 P.2d 346; State v. Jackson, 47 N.M. 415, 143 P.2d 875; United States v. Hall, 2 Cir., 178 F.2d 853. 'The defendant had a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.' United States v. Toner, 3 Cir., 173 F.2d 140, 142.

While Powell and Kerley were indicted jointly, the crime was several in nature. The guilt of one was not dependent upon the guilt of the other. If one were convicted or pleaded guilty, this would not be evidence of the guilt of the other; nor would the acquittal of one be evidence of the innocence of the other. Moreover, the admissibility of Powell's plea as evidence was not altered by the fact that it was tendered and accepted, presumably in the presence of the jury, during the progress of the trial. Paine v. People, supra.

The withdrawal by Powell of his plea of not guilty, and the tender and acceptance of his plea of nolo contendere, under the circumstances stated, would not of itself, standing alone, constitute prejudicial error as to Kerley. State v. Hunter, 94 N.C. 829; State v. Bryant, 236 N.C. 745, 73 S.E. 2d 791; 23 C.J.S. Criminal Law § 969; State v. De Bellis, 136 A. 603, 5 N. J. Misc. 375; Id., 104 N.J.L. 187, 138 A. 923; State v. Sutherland, 123 N.J.L. 513, 9 A.2d 807; Id., 125 N.J.L. 273, 15 A.2d 749; Hines v. United States, 10 Cir., 131 F.2d 971; Kelling v. United States, 8 Cir., 121 F.2d 428; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577; Schliefer v. United States, 3 Cir., 288 F. 368; Richards v. United States, 10 Cir., 193 F.2d 554; United States v. Hartenfeld, 7 Cir., 113 F.2d 359; United States v. Falcone, 2 Cir., 109 F.2d 579; United States v. Dewinsky, D.C.N.J., 41 F.Supp. 149; Graff v. People, 208 Ill. 312, 70 N.E. 299; Commonwealth v. Biddle, 200 Pa. 640, 50 A. 262; United States v. Rollnick, 2 Cir., 91 F.2d 911.

In certain of the cited cases, e. g., the Sutherland, Richards, Graff, Biddle and Rollnick cases, and in State v. Bryant, supra, the codefendant whose plea of guilty was involved testified as a State's witness to facts tending to establish his own guilt. In this setting, his plea, of itself and standing alone, was held not sufficiently prejudicial to warrant a new trial.

It is noted that Powell was not called as a State's witness. There is nothing to indicate that if called he would have implicated Kerley. Be that as it may, had he testified to facts tending to establish Kerley's guilt, then Kerley's right to be confronted by his accuser and to subject him to cross-examination would have been recognized. Kirby v. United States, supra; Constitution of North Carolina, Art. I, sec. 11; State v. Dixon, 185 N.C. 727, 730, 117 S.E. 170; State v. Perry, 210 N.C. 796, 188 S.E. 639.

In certain of the cited cases, e. g., the Hines, Kelling, Hartenfeld, Graff, Falcone and Rollnick cases, it appears that the presiding judge, in the absence of request, instructed the jury that the codefendant's plea of guilty was not to be considered as evidence against the defendant then on trial. Thus, in Hines v. United States, supra , the trial judge specifically admonished the jury that the guilty plea of Palmer (codefendant) had no bearing one way or the other on the guilt or innocence of Hines (then on trial); 'that they were not to 'speculate' on the reason for the failure of Palmer to go to trial, and that their verdict should be based on the evidence in the case submitted to them under the indictment.' See also State v. Bryant, supra.

What prompted Powell's plea of nolo contendere is a matter concerning which the record affords no answer. If we were to indulge in speculation we could not overlook the fact that simultaneously he entered pleas of nolo contendere in 14 other cases then pending against him. Nothing appears to indicate that Kerley was charged or in any way involved in such other cases.

None of the cited cases supports the view that the codefendant's plea of guilty is competent for consideration as evidence against the defendant then on trial.

When request therefor is made, it is the duty of the trial judge to instruct the jury that a codefendant's plea of guilty is not to be considered as evidence bearing upon the guilt of the defendant then on trial and that the latter's guilt must be determined solely on the basis of the evidence against him and without reference to the codefendant's plea. Babb v. United States, 5 Cir., 218 F.2d 538; United States v. Toner, supra; United States v. Hall, supra; O'Shaughnessy v. United States, 5 Cir., 17 F. 2d 225.

Where two or more persons are jointly tried, the extrajudicial confession of one defendant may be received in evidence over the objection of his codefendant(s) when, but only when, the trial judge instructs the jury that the confession so offered is admitted as evidence against the...

To continue reading

Request your trial
33 cases
  • State v. Phifer
    • United States
    • North Carolina Supreme Court
    • June 17, 1976
    ...the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra at 160, 97 S.E.2d at 879 (246 N.C. 157, 97 S.E.2d 876 (1957)).' In instant case, witness Peterson testified without objection that when the three defendants returned a......
  • Kwallek v. State
    • United States
    • Wyoming Supreme Court
    • March 12, 1979
    ...261 (1960); State v. Aubuchon, Mo., 381 S.W.2d 807 (1964); People v. Zachery, 31 A.D.2d 732, 297 N.Y.S.2d 183 (1968); State v. Kerley, 246 N.C. 157, 97 S.E.2d 876 (1957); Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962); and Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964).......
  • State v. Potter
    • United States
    • North Carolina Supreme Court
    • June 6, 1978
    ...had ample opportunity by cross-examination of Ellison to test the factual basis for his plea. This case is thus unlike State v. Kerley, 246 N.C. 157, 97 S.E.2d 876 (1957), where a nontestifying codefendant entered a plea of nolo contendere during the trial and the prosecuting attorney argue......
  • State v. Fox, 83
    • United States
    • North Carolina Supreme Court
    • October 9, 1968
    ...best solution of the difficult problem, and that it could not assume a jury would ignore the trial judge's instructions. State v. Kerley, 246 N.C. 157, 97 S.E.2d 876. A confession legally obtained is clearly competent against the defendant who made it and the best evidence of his guilt. A s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT