State v. Horne

66 S.E.2d 665, 234 N.C. 115, 1951 N.C. LEXIS 416

• Court: Supreme Court of North Carolina
• Decided: September 19, 1951
• Docket: 77
• Status: Published

Opinion

Stacy, O. J.

Tbe question for decision is whether tbe record supports tbe judgment.

In its essential features, tbe case is strangely similar to S. v. Shepherd, 230 N.C. 605, 55 S.E. 2d 79. There, tbe defendant contended that bis plea of nolo contendere was a conditional one with tbe ultimate issue of bis guilt or innocence to be determined by tbe court. Tbe same contention is made here. There, it was conceded on appeal that sucb a plea was ill advised or improvident under tbe case of S. v. Camby, 209 N.C. 50, 182 S.E. 715. Tbe same conclusion is made here.

While tbe court was constrained to uphold tbe judgment in tbe Shepherd case because of tbe state of tbe record, just tbe opposite seems appropriate here.

Tbe defendant was inops consilii during tbe trial. True, it was made to appear to tbe court that “tbe defendant bad studied law and bad applied to take tbe examination to be permitted to practice in North Carolina.” Nevertheless, be was undertaking to appear for himself which affords some measure of his prudence and sagacity. Tbe opportunity to withdraw bis plea was under tbe shadow of a further charge of embezzlement. And the defendant seems to have heen under the constant impression that his plea of nolo contendere was a conditional one. Nowhere on the record does the opposite appear. Herein lies the difference between the present case and the Shepherd case. It seems to fall under the Carnby case. The law does not sanction a conditional plea of nolo contendere. The record presents this situation as the defendant views it: The defendant was under the impression that he had entered a conditional plea of nolo, contendere with the court to pass upon his guilt or innocence. The judge expressed the opinion that it seemed to be more a case of embezzlement than of larceny, and offered the defendant an opportunity to withdraw his plea and later face a charge of embezzlement. The defendant was justified in believing that under his conditional plea the judge would acquit him of the charge'of larceny. He therefore chose to let it stand. He evidently acted under a misapprehension.

The State, on the other hand, says that even from the defendant’s own conception of the record he simply “took a chance and lost.” Stamey v. R. R., 208 N.C. 668, 182 S.E. 130; Weston v. Ry., 194 N.C. 210, 139 S.E. 237. Maybe so, and maybe not. He certainly had a different understanding of what was going on. At least, he was guessing at its meaning.

We think the case is controlled by what was said in S. v. Gooding, 194 N.C. 271, 139 S.E. 436. Also obliquely pertinent is the case of S. v. Calcutt, 219 N.C. 545, 15 S.E. 2d 9. The matters involved- — the enforcement of the criminal law and the liberty of the citizen — are worthy of exactitude and clear understanding. S. v. Jones, 227 N.C. 47, 40 S.E. 2d 458; In re Parker, 225 N.C. 369, 35 S.E. 2d 169.

Error and remanded.

Note: This opinion was written in accordance with the Court’s decision and filed by order of the Court after Chief Justice Stacy’s death.

ValentiNE, J., took no part in the consideration or decision of this, case.