State v. Talbert

• Decision Date: 14 March 1973
• Docket Number: No. 19,19
• Parties: STATE of North Carolina v. Vernon Charles TALBERT.
• Court: North Carolina Supreme Court

Page 822

194 S.E.2d 822

282 N.C. 718

STATE of North Carolina v. Vernon Charles TALBERT.

No. 19.

Supreme Court of North Carolina.

March 14, 1973.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. William F. O'Connell, for the State.

Burke & Donaldson by George L. Burke, Jr., and Arthur J. Donaldson, Salisbury, for defendant appellant.

SHARP, Justice:

Defendant's assignment of error No. 13 is that 'the court erred in entering the judgment as it appears of record.' This assignment must be sustained, for--as defendant asserts--the verdict, 'guilty as charged,' will not support a sentence for murder in the first degree in this case. Therefore, the verdict and judgment must be set aside and the case remanded for trial de novo.

Prior to 1893 there were no degrees of murder in North Carolina. Any unlawful killing of a human being with malice aforethought was murder and punishable by death. By Sections One and Two of N.C.Sess.Laws, Ch. 85 (1893) (now G.S. § 14--17) murder was divided into two degrees. By Section Three is was provided that the division should not 'be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.' Section Three is now G.S. § 15--172 (1965). 'The existing form of indictment,' to which this section referred, was prescribed by N.C.Sess.Laws, Ch. 58 (1887) and is now G.S. § 15--144 (1965).

An indictment for homicide in the words of G.S. § 15--144 will support a verdict of murder in the first degree, murder in the second degree, or manslaughter. See State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. Gilchrist, 113 N.C. 673, 18 S.E. 319 (1893).

In requiring the jury to determine the degree of homicide of which defendant is guilty, G.S. § 15--172 merely codified the well established rule that a verdict which leaves the matter in conjecture will not support a judgment. State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967); State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953). When, in a prosecution for homicide upon an indictment drawn under G.S. § 15--144, the judge accepts a verdict of 'guilty as charged' after having instructed the jury that it might return a verdict of guilty of murder in the first or second degree, or guilty of murder in either degree of manslaughter, 'such a verdict on such an indictment' cannot be sustained. State v. Truesdale, 125 N.C. 696, 34 S.E. 646 (1899). In such case the verdict is a general one without a response as to what grade of homicide the defendant was guilty, and a new trial must be ordered. State v. Jefferson, 125 N.C. 712, 34 S.E. 648 (1899). See also State v. Bazemore, 193 N.C. 336, 137 S.E. 172 (1927); State v. Ross, 193 N.C. 25, 136 S.E. 193 (1927).

In State v. Fuller, Supra, defendant was charged with murder in an indictment under G.S. § 15--144. When the case was called for trial the solicitor announced that he did not seek a verdict of guilty of murder in the first degree but asked for a verdict of guilty of murder in the second degree or manslaughter, as the evidence might show. Upon a verdict of 'guilty as charged' the judge imposed a sentence of 25--30 years. In ordering a new trial, this Court said, 'From the sentence imposed, it is apparent that the Court consider it as a verdict of guilty of murder in the second degree. However, under these conditions, the matter should not be left to conjecture or surmise, and the Court should have required the jury to be more specific.' Id., 270 N.C. at 715, 155 S.E.2d at 289.

Verdicts of 'guilty as charged' in prosecutions under G.S. § 15--144 have been held sufficient to support the judgment when the judge has instructed the jury to return a verdict of murder in the first degree or not guilty and there was no evidence to warrant a verdict of guilty of murder in the second degree or manslaughter. In such a situation the verdict will be taken with reference to the charge and the evidence in the case and interpreted as a verdict of guilty of the only charge submitted. State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916); State v. Walker, 170 N.C. 716, 86 S.E. 1055 (1915); State v. Gilchrist, Supra. This holding is an application of the general rule that '(a) verdict apparently ambiguous 'may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions of the court. '' State v. Thompson, 257 N.C. 452, 457, 126 S.E.2d 58, 61--62, cert. denied, 371 U.S. 921, 83 S.Ct. 288, 9 L.Ed.2d 230 (1962). See also State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967), rev'd on other grounds, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971); State v. Morris, 215 N.C. 552, 2 S.E.2d 554 (1939).

A verdict is not complete until it is accepted by the court, and it is the duty of the judge to require the jury to specify the crime of which they found defendant guilty. See State v. Bagley, 158 N.C. 608, 73 S.E. 995 (1912) and State v. Lucas, 124 N.C. 825, 32 S.E. 962 (1899), two cases in which this was done. As Justice (later Chief Justice) Hoke said in State v. Bryant, 180 N.C. 690, 692, 104 S.E. 369, 370 (1920), '(W)e deem it not amiss to again admonish the profession and officials . . . that the verdict should be rendered in the precise form that the statute requires; that is, to specify in terms of the degree of the crime of which the prisoner is convicted.'

Had the verdict in this case been an unambiguous one of guilty of murder in the first degree, there being no error in the trial prior thereto, we would have disposed of the appeal by vacating the death sentence and directing the superior court to impose a life sentence in accordance with the procedure detailed in State v. Hill, 179 N.C. 371, 183 S.E.2d 97 (1971). However, such a disposition is not possible.

The sentence of death imposed upon defendant seems to call for some comment. We note, therefore, that on 29 June 1972, approximately two and one-half months before defendant was put on trial for his life at the September 1972 Session, the Supreme Court of the United States had decided Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. In each of these three cases, hereinafter referred to collectively as Furman, the defendant appealed a death sentence imposed under a statute similar to our G.S. § 14--17. The Supreme Court held (four justices dissenting) that the death sentence imposed under statutes permitting either judge or jury to impose that penalty as a matter of discretion, constituted cruel and unusual punishment and violated the Eighth and Fourteenth Amendments to the United States Constitution. The judgment in each...