State v. Tola

• Decision Date: 16 December 1942
• Docket Number: 652.
• Citation: 23 S.E.2d 321,222 N.C. 406
• Parties: STATE v. TOLA.
• Court: North Carolina Supreme Court

23 S.E.2d 321

222 N.C. 406

STATE v. TOLA.

No. 652.

Supreme Court of North Carolina

December 16, 1942

Harry McMullan, Atty. Gen., and G.B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

W Brantley Womble and J.M. Templeton, both of Raleigh, for defendant.

DENNY Justice.

The plea of former jeopardy cannot be sustained on this record. The record shows that in the Superior Court the defendant was tried on one count of the five contained in the warrant being the count on which defendant was convicted in the Recorder's Court and from which he had appealed to the Superior Court. The defendant argues that he was prejudiced before the jury by reason of the failure of the court to ascertain before the close of the State's evidence, what count or counts in the warrant would be submitted to the jury. The judgment of the Recorder's Court shows only that the defendant was found guilty. It was not until the defendant called the Judge of the Recorder's Court to the witness stand that it was established by parol that the defendant had been found guilty only on the first count in the warrant and not guilty as to the other counts. At the close of all the evidence, His Honor stated in open court that he would allow the case to go to the jury only on the first count. We find no error in this procedure, in view of the fact that under a plea of former jeopardy the burden of proof is upon the defendant to show that he is entitled to his release. State v. White, 146 N.C. 608, 60 S.E. 505.

The defendant was permitted to introduce parol testimony in explanation of the judgment entered in the Recorder's Court. The State did not object to this testimony and the court gave the defendant the benefit of it; therefore the defendant cannot complain because the State did not undertake to contradict or explain the judgment entered in the Recorder's Court which stated: "After hearing the evidence in this case, it is adjudged that the defendant Andy Tola, is guilty." Beginning with Cline v. Lemon, 4 N.C. 323, this court said: "No principle of law in relation to evidence, is better settled, than that parol testimony in contradiction of matters of record is inadmissible." Again, in Wade v. Odeneal, 14 N.C. 423, Ruffin, J., said: "The question is, how this judgment is to be proved. Courts of record speak only in their records. They preserve written memorials of their proceedings, which are exclusively the evidence of those proceedings. *** The records may be identified by testimony, but their contents cannot be altered, nor their meaning explained by parol. The acts of the Court cannot thus be established." Norfolk Southern R. Co. v. Reid, 187 N.C. 320, 121 S.E. 534; Gauldin v. Town of Madison, 179 N.C. 461, 102 S.E. 851, 10 A.L.R. 1497; Forbes v. Wiggins, 112 N.C. 122, 16 S.E. 905; 23 R.C.L. at Sec. 7, p. 158. In lieu of parol testimony to explain a judgment of a court, the proper procedure is an application to the court which entered the judgment to have the record amended so as to speak the truth. This court said, in Walton v. Pearson, 85 N.C. 34: "In the uncertainty as to the real character of the judgment, growing out of the inconsistent and contradictory entries upon its dockets, the law imposed the duty of determining the question upon the court in which the judgment was rendered and lodged with it alone the power to make the records consistent in themselves and with the truth. It is the duty of every court to supply the omissions of its officers in recording its proceedings and to see that its record truly sets forth its action in each and every instance; and this it must do upon the application of any person interested, and without regard to its effect upon the rights of parties or of third persons; and neither is it open to any other tribunal to call in question the propriety of its action or the verity of its record as made. This power of a court to amend its records has been too often recognized by this court, and its exercise commended, to require the citation of authorities--other than a few of the leading cases on the subject. See Phillipse v. Higdon [44 N.C.] Busb., 380; Foster v. Woodfin, 65 N.C. 29; Mayo v. Whitson, 2 Jones 231 ; Kirkland v. Mangum, 5 Jones 313 ." Norfolk Southern R. Co. v. Reid, supra.

The exceptions directed to the method used by the expert chemist in ascertaining the alcoholic content of the drinks purchased at the defendant's place of business, cannot be sustained. The process or method used in ascertaining alcoholic content might be considered on the question of the credibility of the expert witnesses, but not on the competency or admissibility of their evidence.

Other exceptions are directed to questions propounded to the wife of the defendant on cross-examination. Defendant contends his wife was an incompetent witness to testify as to anything that occurred at his place of business. It is true the State could not have compelled her to testify against her husband in this trial, but, when she took the witness stand to testify in his behalf, she was subject to cross-examination in the same manner and to the...