State v. . Shew

140 S.E. 621, 194 N.C. 690, 1927 N.C. LEXIS 180

• Court: Supreme Court of North Carolina
• Decided: December 14, 1927
• Status: Published

Opinion

Stacy, C. J.

Consideration of the question as to whether the second count in the bill of indictment is defective, as alleged, is omitted, for the reason that the verdict is insufficient to support a judgment, which necessitates awarding a venire de novio, and, with respect to the alleged defect, if any exist, the solicitor can easily cure same by sending another bill to the grand jury.

A similar verdict in almost exact form as the one now presented, was before the Court in the case of S. v. Whitaker, 89 N. C., 472. There, the defendant was charged (1) with the larceny of a quantity of cotton, the property of one James H. Parker, and (2) with feloniously receiving said cotton knowing it to have been stolen. The jury returned the following verdict: “Guilty of receiving stolen cotton.” Speaking to the insufficiency of the verdict as a basis for judgment, Ashe, J., de livering tbe opinion of tbe Court, said: “It is not sufficiently responsive to tbe issue; and whenever a verdict is imperfect, informal, insensible, or one that is not responsive to tbe indictment, tbe jury may be directed to reconsider it with proper instructions as to tbe form in which it should be rendered (citing authorities). But if such a verdict is received by tbe court and recorded, it would be error to pronounce judgment upon it. Tbe most regular course would be to set aside tbe verdict and order a venire de novo."

Again, in S. v. Parker, 152 N. C., 790, 67 S. E., 35, tbe defendant was indicted for carrying a concealed weapon in violation of tbe statute. Tbe verdict returned by tbe jury was “guilty of carrying a pistol in bis suitcase.” This was held to be insufficient to support a judgment. In a clear and forceful opinion Walker, J., speaking for tbe Court, quotes with approval from S. v. Newsome, 3 W. Va., 859, as follows: “We cannot approve of taking from a citizen bis liberty upon a verdict that neither alludes to tbe indictment nor uses language to show a conviction of tbe crime charged therein. If tbe jury intended to find tbe defendant guilty of tbe offense as charged in tbe indictment, they should have said so, and tbe court should have seen that tbe verdict so declared, or should have refused to receive it.”

Tbe pertinent authorities were again reviewed in S. v. Gregory, 153 N. C., 646, 69 S. E., 674.

Agreeable with these decisions a venire de novo must be awarded.

Venire de novo.