State v. Perry , 3 N.C. App. 356 ( 1968 )

164 S.E.2d 629 (1968) 3 N.C. App. 356

STATE of North Carolina
v.
Jimmy PERRY.

No. 687SC466.

Court of Appeals of North Carolina.

December 31, 1968. Certiorari Denied March 5, 1969.

Atty. Gen. T. W. Bruton and Staff Atty. Christine Y. Denson, Raleigh, for the State.

Lucas, Rand, Rose, Meyer & Jones, by Louis B. Meyer, Wilson, for defendant appellant.

MALLARD, Chief Judge.

The State on voir dire offered evidence which, in substance, tended to show that the defendant, after being warned as to his constitutional rights against self-incrimination, voluntarily and understandingly made a statement admitting to the officers that he took part in the crime charged. The statement made by the defendant was admitted in evidence in case no. 2360 after the court found as a fact that it was voluntarily made. The evidence for the State also tended to show that the check for $10.00 described in the bill of indictment in case no. 2360 was forged. The defendant, knowing the check was a forgery, took it to a place of business operated by Mrs. R. E. Deans and cashed it, receiving $4.70 in cash after telling Mrs. Deans he wanted to pay $5.30 on the account of Mrs. Rachel Perry. Mrs. Rachel Perry is the mother of the defendant.

Defendant contends that the trial judge did not explain the law arising on the evidence as required by G.S. § 1-180. Defendant also contends that the court failed to instruct the jury that they should give the testimony as to defendant's admission such weight as it, the jury, found it was entitled to have after considering whether it was freely and voluntarily made.

This contention is without merit. Upon reading the charge as a whole, we are of the opinion and so hold that the trial judge fully and adequately explained to the jury, as required, that the questions of whether there was evidence and its weight and credibility were for the jury to decide. The question of the admissibility of evidence is for the judge. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481. Whether there is evidence and its weight and credibility are for the jury. State v. Barber, 268 N.C. 509, 151 S.E.2d 51; State v. Walker, 266 N.C. 269, 145 S.E.2d 833. Defendant's exception to the entry of the judgment in case no. 2360 is without merit, requires no discussion, and is overruled.

Defendant also excepts to the entry of the judgment in the eleven consolidated cases in which guilty pleas were entered. An exception to the judgment presents the face of the record proper for review. 1 Strong, N.C. Index 2d, Appeal and Error, § 26. In State v. Newell, 268 N.C. 300, 150 S.E.2d 405, the Court said:

"Defendant having pleaded guilty, his appeal presents for review only whether error appears on the face of the record proper."

In two of the cases consolidated for judgment (cases nos. 2363 and 2367), the defendant was charged in each case with the felony of obtaining property by means of false pretense, and the charges in these bills of indictment did not include the charge of uttering a forged instrument. The other nine cases did include such charge. On each of these nine cases the court could have imposed a sentence of imprisonment in the State's prison for more than the five to seven years imposed in the consolidated judgment. Unless there was a waiver of the finding and return of a bill of indictment, the defendant could not plead guilty in these two cases to crimes not included in the charge contained in the bill of indictment. No waiver appears. This question is not argued. It is not properly presented. However, counsel for the defendant in his brief requests the Court to examine the face of the record for prejudicial error. We have done so.

The conviction and sentence in case no. 2360 is without prejudicial error and must stand. The sentence and the judgment in the consolidated cases imposes no additional burden upon the defendant because the sentence imposed is to run concurrently with the sentence in case no. 2360. To permit the present judgment in the consolidated cases to stand would give the defendant his freedom when the valid sentence is served. To grant him a new trial in the two false pretense cases would permit as to them a further prosecution. Another trial on those charges might result in a consecutive sentence, and hence be prejudicial to the defendant. To remand the nine cases for resentencing in which there is a proper charge of uttering a forged instrument and to which pleas of guilty were entered might result in a consecutive sentence or sentences, and hence be prejudicial to the defendant. State v. Booker, 250 N.C. 272, 108 S.E.2d 426; State v. Cephus, 241 N.C. 562, 86 S.E.2d 70. See also State v. Morgan, 268 N.C. 214, 150 S.E.2d 377.

In our opinion, there is no prejudicial error on the face of the record as to the consolidated cases, and there is no prejudicial error in the trial and sentencing of the defendant in case no. 2360.

No error.

CAMPBELL and MORRIS, JJ., concur.