State v. . Monger , 107 N.C. 771 ( 1890 )

The jury have rendered no verdict. They found certain facts to be true, and add: "If, upon the foregoing state of facts, his Honor be of opinion that the defendant is guilty, then the jury find him guilty: if not, then the jury find him not guilty." The record then states: "His Honor, upon the foregoing facts, being of the opinion that the defendant is guilty, adjudges that he pay a fine of $25 and costs." This was doubtless an inadvertence, but the effect is a judgment pronounced without a verdict to support it. S. v. Moore, ante, 770, and cases there cited. Regularly, the court, upon the facts found, should have instructed the jury that their verdict should be "guilty," or "not guilty," and, such verdict having been entered up, the court should thereupon have sentenced the prisoner, or have discharged him (772) as the case might be. From the former judgment the defendant might appeal, and from the latter the State. The Code, sec. 1237.

For the reasons given, we must declare that there is error. The transcript of the record on appeal was imperfect in not setting out that the court was held, etc. S. v. Butts, 91 N.C. 524. This, however, has been amended by a supplementary record having since been sent up.

Error.

Cited: S. v. Nies, post, 820; S. v. Spray, 113 N.C. 688.