State v. Cagle , 241 N.C. 134 ( 1954 )

84 S.E.2d 649 (1954) 241 N.C. 134

STATE
v.
Eula CAGLE.

No. 8.

Supreme Court of North Carolina.

November 24, 1954.

Charles M. Fortune, F. Piercy Carter, Asheville, for defendant appellant.

R. Brookes Peters, E. O. Brogden, Jr., Raleigh, for respondent appellee.

WINBORNE, Justice.

These are questions now presented for decision:

1. Where at a regular term of Superior Court a defendant in a criminal prosecution has pleaded guilty to a misdemeanor charged therein, and the trial judge has pronounced judgment sentencing defendant to confinement in prison for a specific term and suspends the prison sentence for a certain length of time "upon the good behavior of the defendant" and upon the payment of a fine and the costs, and the defendant has paid the fine and costs, may the judge during the same term strike out the judgment, and order refund to defendant of the amount of the fine and costs paid, and enter judgment that defendant be confined in prison for a given term?

2. If so, may the trial judge designate the women's division of the Central Prison at Raleigh, N. C., as the place of imprisonment?

3. If the minutes of the Clerk incorrectly record the place of imprisonment designated in the judgment, may the minutes be corrected to speak the truth?

4. If so, may the trial judge, after the expiration of the term, and while holding a term of court in another county, order the correction of the minutes nunc pro tunc?

The first question merits an affirmative answer. For until the expiration of the term of court, that is during the term, the judgments of the court are in fieri, and the judge has the power, in his discretion, to make such changes and modifications in them as he may deem wise and appropriate for the administration of justice. State v. Godwin, 210 N.C. 447, 187 S.E. 560; Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407; State v. Gross, 230 N.C. 734, 55 S.E.2d 517, 521.

In the Gross case, supra, this Court in opinion by Seawell, J., declared that "As the term of court had not expired the whole matter was in fieri and the right of the judge to modify, change, alter or amend the prior judgment, or to substitute another judgment for it, cannot be questioned", citing cases.

The second question in the light of the provisions of Sec. 3 of art. XI of the Constitution of North Carolina, implemented by G.S. § 148-28, is answered "No".

It is provided in Sec. 3 of art. XI of the Constitution that "The General Assembly shall * * * make provision for the erection and conduct of a State's prison or penitentiary, at some central or accessible point within the State." And the General Assembly has declared in G.S. § 148-28 entitled "Sentencing of prisoners to central prison" that "The several judges of the superior courts of this State are hereby given express authority in passing sentence upon persons convicted of a felony * * * to sentence such person to the central prison at Raleigh * * *." Thus it appears that only persons convicted of felonies may be sentenced to the Central Prison. However the General Assembly of 1933 created the State Highway & Public Works Commission, P.L.1933, Chap. 172, Sec. 2, and vested in it the control and custody and management of, among others, all State Highway prison camps, and the Central Prison at Raleigh. And at the next session the General Assembly passed an act, P.L.1935, Chap. 257, providing that "the State Highway and Public Works Commission may provide within the bounds of the Central Prison at Raleigh, or elsewhere in the State, suitable quarters for women prisoners, and arrange for work suitable to their capacity", and that "the several Courts of the State may assign women convicted of offenses, whether felonies or misdemeanors, to such quarters so provided * * *."

However, when the above was incorporated into the General Statutes, G.S. § 148-27, it was made to read that: "The State Highway and Public Works Commission may provide suitable quarters for women prisoners and arrange for work suitable to their capacity", omitting any reference as to where such quarters should be provided. And in the case in hand there is no finding that the "quarters for women" provided by the State Highway & Public Works Commission at the time of the judgments here in question were entered, are in the Central Prison at Raleigh.

Now as to the third and fourth questions, the presumption is that the record as it appears is true, State v. Brown, 203 N.C. 513, 166 S.E. 396. But the Superior Court at term has the power to correct its records to speak the truth. Such power extends to clerical errors or to make the judgment express correctly the action taken by the court, but it does not extend to the correction of errors of law. In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526. See also State v. Brown, supra, and cases cited. Ragan v. Ragan, 212 N.C. 753, 194 S.E. 458; North Carolina Joint Stock Land Bank v. Cherry, 227 N.C. 105, 40 S.E.2d 799, and cases cited.

In the Ragan case it is said that it is the duty of the court below, and not ours, on application, or ex mero motu, to correct the record to speak the truth, and to make entries nunc pro tunc that were certainly intended to be made, but omitted by mistake, accident or inadvertence of the court.

Hence, if the place of imprisonment designated in the judgments is the quarters provided by the State Highway & Public Works Commission for women prisoners, a fact to be found by the Superior Court, the judgments would not be subject to attack, and it would not be necessary to correct the minutes.

But if the place of imprisonment designated in the judgment, or shown in the minutes, is not the quarters provided by the State Highway & Public Works Commission for women prisoners, the Superior Court in term, upon motion or ex mero motu, may correct the judgment or minutes by designating the proper place. For determination of the truth of the matter the case must be remanded to Superior Court to be heard at term. This does not work a new trial of the case, but is simply an order to remand to have the correction properly made. State v. Brown, supra.

It may be added that the order signed by Judge Sharp is without force and effect. State v. Whitley, 208 N.C. 661, 182 S.E. 338; Bisanar v. Suttlemyre, 193 N.C. 711, 138 S.E. 1. On the date she purported to act, she had no commission to hold a term of court in Haywood County, but was commissioned to hold a one-week term in Buncombe County for the trial of criminal and civil cases in lieu of Moore, J., by order of the Chief Justice under date of 19 June, 1954. Nevertheless, the purported order signed by her may be helpful to the court in determining the proper place of imprisonment as intended in the judgment, and in correcting the minutes, for which purpose it may be considered as a certificate in respect thereto.

The petitioner also complains that she has been prejudiced by the failure to perfect her appeal. As to this, it is sufficient to say that a careful consideration of the whole case fails to reveal any matter prejudicial to her, and not considered by this Court.

The case will be remanded for further proceedings in accordance herewith.

Remanded.