State v. Perry, 434.
| Decision Date | 02 May 1945 |
| Docket Number | No. 434.,434. |
| Citation | 33 S.E.2d. 869,225 N.C. 174 |
| Parties | STATE. v. PERRY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Franklin County; Burgwyn, Special Judge.
Randall Perry was convicted of a secret assault with a deadly weapon with intent to kill, and he appeals.
Error and remanded.
Criminal prosecution on bill of indictment charging that defendant did "unlawfully, wilfully, maliciously and in a secret manner, and feloniously assault T. E. Privett with a certain deadly weapon, to wit: shot gun, with the felonious intent to kill and murder the said T. E. Privett inflicting serious injuries, not resulting in death;" and specifying the injuries inflicted.
On the night of 24 June 1944, defendant and Privette were in J. A. Ray's store. De-fendant had been in the service of his country as a soldier for three and one-half years but had been discharged and was in civilian clothing. Privette chided him about being out of the Army and said to him, "You didn't do so damn sorry that they kicked you out, did you?", and calling him, as defendant testified, "a 4-F s. o. b." Defendant became angered, got his gun and, as Privette started out the door, shot him in the hand.
The jury, after deliberating, came into court and returned for its verdict "Guilty of a secret assault with a deadly weapon, without intent to kill." The record discloses that thereupon the following occurred:
Defendant excepted to each statement of the Court and also to its refusal to accept the verdict tendered.
After again deliberating, the jury returned for its verdict "Guilty of an assault with a deadly weapon with intent to kill in a secret manner as charged in the bill of indictment."
Sentence: not less than five years and not more than ten years in the State prison.
Defendant excepted and appealed.
Harry M. McMullan, Atty. Gen., and Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.
Yarborough & Yarborough, of Louisburg, Thorp & Thorp, of Rocky Mount, and E. H. Malone, of Louisburg, for defendant appellant.
Was it the duty of the Court below to accept and record the verdict first tendered by the jury? We are constrained to answer in the affirmative.
While a verdict is a substantial right, Bundy v. Sutton, 207 N.C. 422, 177 S.E. 420, it is not complete until it is accepted by the court for record. State v. Godwin, 138 N.C. 582, 50 S.E. 277; State v. Bagley, 158 N.C. 608, 73 S.E. 995; State v. Snipes, 185 N.C. 743, 117 S.E. 500; Allen v. Yarborough, 201 N.C. 568, 160 S.E. 833.
This does not imply, however, that in accepting or rejecting a verdict the presiding judge may exercise unrestrained discretion. While he should scrutinize a verdict with respect to its form and substance and to prevent a doubtful or insufficient finding from becoming the record of the court, his power to accept or reject the jury's finding is restricted to the exercise of a limited legal discretion. State v. Baze-more, 193 N.C. 336, 137 S.E. 172.
When, and only when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict. State v. Arrington, 7 N.C. 571; State v. McKay, 150 N.C. 813, 63 S.E. 1059; State v. Baze-more, supra; State v. Noland, 204 N.C. 329, 168 S.E. 412; Queen v. DeHart, 209 N.C. 414, 184 S.E. 7.
A verdict is not bad for informality or clerical errors in the language of it if it is such that it can be clearly seen what is intended. It is to have a reasonable intendment and is to receive a reasonable construction and must not be voided except from necessity. State v. Whisenant, 149 N.C. 515, 63 S.E. 91; State v. Craig, 176 N.C. 740, 97 S.E. 400.
Although defective in form, if it substantially finds the question in such a way as will enable the court intelligently to pronounce judgment thereon according to the manifest intention of the jury, it is sufficiently certain to be received and recorded. 27 R.C.L. 858; Wood v. Jones, 198 N. C. 356, 151 S.E. 732; In re Will of Henderson, 201 N.C. 759, 161 S.E. 387; State v. Snipes, supra, and cases cited.
While a verdict must have a definite meaning free from ambiguity and be responsive to the issue or issues submitted by the court, additional nonessential words which are not a part of the legal verdict and do not leave in doubt the character of the verdict may be treated as mere surplusage. State v. Snipes, supra; State v. McKay, supra; State v. Lemons, 182 N.C 828, 109 S.E. 27; State v. Stewart, 189 N. C. 340, 127 S.E. 260; State v. Matthews, 191 N.C. 378, 131 S.E. 743.
Thus a verdict of "guilty of receiving more liquor than allowed by law, and not guilty of retailing or transporting liquor", State v. Brame, 185 N.C. 631, 116 S.E. 164, 165, and "guilty of assault with intent to kill", State v. Gregory, 223 N.C. 415, 27 S. E.2d 140, 141, were sustained; while "guilty of carrying a pistol in his suitcase", State v. Parker, 152 N.C. 790, 67 S.E. 35, 36, "guilty of receiving stolen cotton", State v. Whitaker, 89 N.C. 472, and "guilty of shooting", State v. Hudson, 74 N.C. 246, were rejected for insufficiency and ambiguity.
Here the verdict tendered, when given a reasonable construction, is not...
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...and reconsider the matter and bring in a proper verdict, do not apply. See State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880; State v. Perry, 225 N.C. 174, 33 S.E.2d 869. Defendant does not challenge the acceptance of the verdict or any other feature of the It is noted further that we are not co......
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