State v. Sumner , 269 N.C. 555 ( 1967 )

153 S.E.2d 111 (1967) 269 N.C. 555

STATE
v.
Charles SUMNER, Jr.

No. 739.

Supreme Court of North Carolina.

March 1, 1967.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Benjamin R. Wrenn, Reidsville, Court-appointed attorney, for Charles Sumner, Jr., appellant.

HIGGINS, Justice.

The defendant contends the court committed error in refusing to accept the jury's verdict as first returned: "Guilty of assault with intent to harm but not to kill." He contends the verdict as first returned, when properly interpreted is a conviction of a simple assault, nothing more, and "that without intent to kill but with intent to harm" could add nothing to the charge and hence could add nothing to the verdict. The expression should be treated as surplusage.

When the surplus words which add nothing to the meaning are removed, the verdict is clear, free from ambiguity and uncertainty, and meets the test of a proper verdict. It should have been accepted by the court. State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651. Twice the jury specifically excluded the intent to kill, and on neither occasion did it include the use of a weapon.

The third attempt included the deadly weapon only after the court called the "oversight" to their attention.

The question then became one whether the court had the power to reject the verdict and to re-submit the case to the jury. "When, and only when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict." State v. Perry, 225 N.C. 174, 33 S.E.2d 869; citing State v. Noland, 204 N.C. 329, 168 S.E. 412; State v. Bazemore, 193 N.C. 336, 137 S.E. 172; State v. McKay, 150 N.C. 813, 63 S.E. 1059; State v. Arrington, 7 N.C. 571. To the foregoing may be added, State v. Lewis, 256 N.C. 430, 124 S.E.2d 115, and State v. Wilson, 218 N.C. 556, 11 S.E.2d 567.

When the second attempt at a verdict was announced, Judge Gwyn remarked, "You make no mention of a weapon." The foreman: "Yes, sir." Thereafter, Judge Gwyn refused to accept the second attempt and went to great pains to assure the jury that his having mentioned a weapon should have no bearing whatever on reaching a verdict which he directed them to return after further deliberation. However, when a proper verdict is once returned into court it is beyond the power of the judge to recommit the issue to the jury. While the general rule is that a verdict is not complete until it is accepted by the court, Bundy v. Sutton, 207 N.C. 422, 177 S.E. 420; State v. Snipes, 185 N.C. 743, 117 S.E. 500, nevertheless, the rule seems to be that if a proper verdict is returned, one that is permissible under the charge and complete in itself, even though it contains surplusage, the court should have accepted it and directed its entry into the records as the verdict of the jury. This rule was first stated by Taylor, C.J., in State v. Arrington, 7 N.C. 571: "I think this course of proceeding is fit to be imitated here, whenever a prisoner, either in terms or effect, is acquitted by the Jury, and that in all such cases the verdict should be recorded. * * The verdict first returned ought to have been recorded; and it ought to be done now, valeat quantum valere potest," [A liberal translation, "It should have that effect now."] State v. Arrington has been cited with approval by this Court 20 times and has been cited in other jurisdictions. In effect the verdict first returned in the instant case was equivalent to a verdict of not guilty of assault with a deadly weapon, a deadly weapon with intent to kill, inflicting serious injury not resulting in death. It was likewise equivalent to a verdict of not guilty of assault with a deadly weapon. The verdict excluded the intent to kill. It failed to include the use of any weapon. We conclude that nothing is left but a verdict of guilty of a simple assault.

In disposing of this case we use the language of this Court in Perry: "The judgment entered is vacated and the cause is remanded to the end that the court below may (1) strike the verdict entered, (2) record the one first tendered by the jury, and (3) pronounce judgment on the verdict thus recorded."

Error and remanded.