State v. Palmore, (No. 377.)

• Decision Date: 22 April 1925
• Docket Number: (No. 377.)
• Citation: 127 S.E. 599
• Court: North Carolina Supreme Court
• Parties: STATE. v. PALMORE.

127 S.E. 599

(189 N.C. 538)

STATE.

v.PALMORE.

(No. 377.)

Supreme Court of North Carolina.

April 22, 1925.

Appeal from Superior Court, Guilford County; Shaw, Judge.

E. L. Palmore was convicted of an offense, and he appeals. New trial.

The defendant was indicted for—

"Willfully, unlawfully and knowingly did offer for sale and sell to Mrs. D. L. Ladd, the stocks, bonds, obligations of or interest in the Health-Tone Laboratories, Incorporated, of Greensboro, N. C, without first having procured license to do so from the insurance department of North Carolina."

On the trial the defendant was found guilty by the jury and sentence imposed by the court below. Exceptions and assignments of error were duly made by defendant, and appeal taken to the Supreme Court.

When the case was called for argument in this court, the Attorney General made a motion, "suggesting a diminution of the record, " and submitted the following affidavit of the court stenographer:

"That she is the official court stenographer for the superior court of Guilford county, N. C, and is the court stenographer that took down in shorthand and transcribed the charge of the honorable Thomas J. Shaw, judge presiding at the trial of the case of State v. E. L. Palmore in the superior court of Guilford county at the September criminal term, 1924; that she has had her attention called to the last paragraph of said charge as transcribed by her as follows:

" 'It is all a matter for you, gentlemen of the Jury. If you find beyond a reasonable doubt that the defendant is guilty in the case in which the bill of indictment recites this transaction with Mrs. Ladd, then you will convict him. If you find beyond a reasonable doubt that he is not guilty, then you will acquit him; and the same rule applies to the second case, gentlemen of the jury—the transaction with Mr. Florence. If you find beyond a reasonable doubt that he is guilty under that bill, you will convict him. If you find beyond a reasonable doubt that is not not guilty you must acquit him.'

"That she has compared the charge as so transcribed with her original shorthand notes, and that she now finds that the portion of the charge as above set out was incorrectly transcribed; that a true and correct transcription of said charge, in so far as it pertains to said last paragraph, is as follows, and not otherwise:

" 'It is all a matter for you, gentlemen of the jury. If you find beyond a reasonable doubt that the defendant is guilty in the case in which the bill of indictment recites this transaction with Mrs. Ladd, then you will convict him. If you have a reasonable doubt as to his guilt, you will acquit him; and the same rule applies to the second case, gentlemen of the jury—the transaction with Mr. Florence. If you find beyond a reasonable doubt that he is guilty under that bill, you will convict him. If you have a reasonable doubt as to his guilt, you must acquit him. You can retire, gentlemen, and make up your verdict.'"

The appellant-defendant's answer to the motion is as follows:

"The appellant herein respectfully submits that the Attorney General's said motion should be denied for the following reasons:

"Although entitled 'motion suggesting a diminution of the record, ' no diminution of the record is suggested. And no certiorari is prayed. The motion prays this court to amend, modify, or alter a part of the agreed case on appeal in the record so as to make it correspond to what the court stenographer in her affidavit now asserts to be her stenographic notes of the trial. The motion is to mend or change the record here so as to substitute alleged stenographer's notes for case on appeal agreed to by counsel.

"Of course appellant and his counsel can have no means of knowing what the stenographer's notes are or mean. That is a matter of which she alone can have knowledge.

"We know, however, that the case on appeal containing the judge's charge as set out in the stenographer's typewritten transcription was served on the solicitor within the time allowed, and that within the time allowed him he approved said case on appeal in writing and signed his name to the approval. R. 40.

"The statute, C. S. § 643, thereupon made it mandatory upon the clerk to file an agreed case on appeal as a part of the record. He did so, and this agreed case is now a part of the record of this case in this court.

"This court holds that stenographer's notes are not compelling authority as to what trans pired during the trial but that the supreme authority is that of counsel themselves in agreeing as to what occurred, whether as to the evidence, as to the charge, or otherwise. And this court has consistently refused to make the stenographer's notes of higher authority than the agreement of counsel. Cressler v. Asheville, 138 N. C. 485, 51 S. E. 53; Rogers v. Asheville, 182 N. C. 596, 109 S. E. 865.

"We therefore submit that the court should not make the stenographer's notes in this case of higher authority than the agreement of counsel.

"Besides, we understand it to be the holding of this court that it is without power to alter, modify, amend, or in any way change the record as it comes to this court. Neal, Adm'r, v. Cowles, 71 N. C. 206; Covington v. Newberger, 99 N. C. 523, 6 S. E. 205; Walker v. Scott, 102 N. C. 487, 9 S. E. 488; State v. Wheeler, 185 N. C. 670, 672, 116 S. E. 413.

"In Walker v. Scott, supra, it was said: 'The case stated or settled on appeal passes into and becomes part of the case in the court below, and it comes to this court as part of the record. This court has no authority to make, alter, or modify it in any material respect, or to determine that it was or was not duly filed.'

''In Covington v. Newberger, supra, the court said: 'Counsel for the appellant proposed to show by affidavits what the instructions asked for and refused were; but this court cannot permit the case stated to be varied or amended in any such way, and we can only consider the questions presented in the record

"We know of no rule, and can conceive of no reason to support a rule, giving the state when it is a party on appeal any rights in this respect superior to the rights of any other litigant.

"Wherefore we respectfully submit that the Attorney General's motion should be denied and that this appeal should be considered and disposed of upon the record."

Bynum, Hobgood & Alderman, of Greensboro, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash,...