State v. Meshaw

• Decision Date: 08 May 1957
• Docket Number: No. 435,435
• Citation: 246 N.C. 205,98 S.E.2d 13
• Parties: STATE, v. Howard Taft MESHAW.
• Court: North Carolina Supreme Court

Page 13

98 S.E.2d 13

246 N.C. 205

STATE, v. Howard Taft MESHAW.

No. 435

Supreme Court of North Carolina.

May 8,1957

George Rountree, Jr., Wilmington, for defendant-appellant.

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

BOBBITT,Justice.

Appellant does not now challenge the sufficiency of the evidence to survive his motions for nonsuit. Moreover, the basis upon which a new trial is awarded renders unnecessary a recital of the evidence.

Herein, without repetition of the several elements thereof, the word 'receiving' refers to the statutory criminal offense defined in G.S. § 14-71.

The record shows that the court gave this instruction: 'If the State has satisfied you beyond a reasonable doubt that the property was stolen and that Meshaw (appellant), Pate or either of the Pates, or Kueghn, later after it was stolen received the same knowing the same to have been stolen, and with a fraudulent intent to convert to their own use, then it would be your duty to find them guilty on the second count of receiving stolen gods, knowing the same to have been stolen.' (Italics added.) Appellant's exceptive assignment of error, directed to the quoted portion of the charge, is well taken; for the gist of this instruction as recorded is that the jury should convict all of the defendants if any one of them received stolen property with knowledge that it had been stolen and with felonious intent.

(Since the record shows that, as to Arnold Gordon Pate, the jury returned a verdict of 'not guilty,' but shows further that the court pronounced judgment, reciting that he had been convicted, doubt is cast upon the accuracy of the record in other respects. Even so, the record imports verity; and we must deal with it accordingly.)

The court explained to the jury that the two counts charged separate and distinct criminal offenses; and the instructions given were to the effect that as to each defendant the jury should return one of three possible verdicts, either guilty of larceny as charged in the first count, or guilty of 'receiving' as charged in the second count, or not guilty. Even so, the record shows that as to appellant the verdict returned was 'guilty as charged.'

While not conceding error therein, no reason is advanced by the Attorney General to sustain the quoted portion of the charge relating to the second count. Rather, he takes the position that there is no error in respect of the larceny count; and that, since a single sentence was pronounced, the general verdict of 'guilty as charged' is sufficient to support a valid judgment and sentence on the larceny count notwithstanding error, if any, in respect of the 'receiving' count.

It is first noted that each count charges a felony, punishable for a term not exceeding ten years. G.S. §§ 14-70, 14-71, 14-72. Too, while involving separate and distinct criminal offenses, they may be joined as separate counts in a single bill. G.S. § 15-152.

This Court has held that a verdict of 'guilty as charged' is a verdict of guilty as to each and all counts in the bill. State v. Best, 232 N.C. 575, 61 S.E.2d 612; State v. Graham, 224 N.C. 347, 30 S.E.2d 151; State v. Toole, 106 N.C. 736, 11 S.E. 168.

The verdict here involves more than mere inconsistency. Typical of cases where inconsistency alone was involved is State v. Sigmon, 190 N.C. 684, 690, 130 S.E. 854, where the jury returned a verdict of guilty of unlawful transportation of intoxicating liquor but failed to find the defendant guilty of possession of intoxicating liquor. Annotation: 'Necessity of consistency in verdict in criminal case,' 80 A.L.R. 171 et seq.

The verdict here purports to establish that the appellant is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other. He may be guilty of one or of the other, not both. State v. Neill, 244 N.C. 252, 93 S.E.2d 155; In re Powell, 241 N.C. 288, 84 S.E.2d 906; State v. Brady, 237 N.C. 675, 75 S.E.2d 791. Hence, the verdicts on the two counts are not only inconsistent but are contradictory.

Because of the mutually exclusive nature of the two separate and distinct criminal offenses, a defendant charged in such two count bill, upon motion therefor, would seem entitled to have the court receive first the jury's verdict as to the larceny count, and thereafter, but only if the verdict be not guilty as to larceny, receive their verdict as to the 'receiving' count. State v. Toole, supra. Indeed, in the absence of motion therefor, this would seem the preferable procedure.

The Attorney General relies largely upon the statement by Clark, J., (later C. J.) in State v. Toole, supra, quoted with approval by Stacy, C. J., in State v. Smith, 226 N.C. 738, 740, 40 S.E.2d 363, 364, viz.:

'When there is a general verdict of guilty on an indictment containing several counts, and only one sentence is imposed, if some of the counts are defective the judgment will be supported by the good count; and, in like manner, if the verdict as to any of the counts is subject to objection for admission of improper testimony or erroneous instruction, the sentence will be supported by the verdict on the other counts, unless the error was such as might or could have affected the verdict on them.'

In State v. Smith, supra, the prosecution was on a bill containing eight counts, each charging a separate offense in relation to intoxicating liquor. The verdict was 'Guilty as charged in the bill of indictment.' The basis of decision was the application of the well-settled rule discussed by Adams, J., in State v. Snipes, 185 N.C. 743, 746, 117 S.E. 500, namely, that the verdict will be presumed to have been returned on the count or counts to which the evidence related. Hence, the contention that the judgment was erroneous because no evidence was offered to support several of the counts in the bill was rejected as without merit.

In State v. Toole, supra, [106 N.C. 736, 11 S.E. 168], the prosecution was on a two count bill charging (1) 'the loud and boisterous use of a single profane sentence in a public place, etc., and its repetition for the space of 10 minutes, to the common nuisance, etc.,' and (2) 'the singing in a loud and boisterous manner on the public streets, etc., of an obscene song, setting out five lines thereof, and the repetition thereof for the space of 10 minutes, in the presence of divers persons then and there present, to the common nuisance, * * *.' The evidence relating to the first count tended to show that the alleged single profane sentence was used once. The evidence relating to the second count tended to establish all facts alleged therein. The jury returned a general verdict of guilty. A single judgment was pronounced.

When considering State v. Toole, supra, these facts should be noted. The majority conceded error in the trial court's refusal to give a requested instruction relating to the first count. Since both counts were submitted, Justices Shepherd and Avery, dissenting, took the view that this error necessitated a new trial. Be that as it may, the point for emphasis here is...