State v. Hardison , 257 N.C. 661 ( 1962 )

127 S.E.2d 244 (1962) 257 N.C. 661

STATE
v.
John HARDISON.

No. 79.

Supreme Court of North Carolina.

September 19, 1962.

Charles L. Abernethy, Jr., New Bern, for defendant appellant.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

PER CURIAM.

Defendant assigns as error the overruling of his motion for judgment of compulsory nonsuit as to both informations made at the close of the State's evidence— the defendant offered no evidence. A careful study of the evidence presented by the State shows that it is sufficient to carry the case to the jury on both informations under the decisions of this Court. State v. Coleman, 253 N.C. 799, 117 S.E.2d 742; State v. Cranfield, 238 N.C. 110, 76 S.E.2d 353; State v. Ridge, 125 N.C. 655, 34 S.E. 439; 37 C.J.S. Forgery § 34. Defendant's motion for judgment of compulsory nonsuit on both informations was properly overruled by the trial court.

Defendant's assignments of error to the admission of evidence over his objection and exception have been examined, and are overruled.

The court in the crucial part of its charge to the jury in respect to the applicable law on information #5820 charging the defendant with fraudulently uttering and publishing a forged cheque in the sum of $50.23 instructed the jury, inter alia, "and that you further find from the evidence and by the greater weight that at the time he passes this cheque that the same was counterfeit, was forged, and he knew the same to have been false, forged or counterfeited at the time, then it would be your duty to return a verdict of guilty as to that indictment (sic)." Defendant assigns this part of the charge as error. This assignment of error is good, and on this information he is entitled to a new trial, and it is so ordered. State v. Gause, 227 N.C. 26, 40 S.E.2d 463. Most probably, the manifest error as to the degree of proof in the words "from the evidence and by the greater weight" was a lapsus linguae or an error in transcribing, but it is in the record, and we are bound by it.

Defendant's assignments of error as to the court's charge to the jury in respect to information #5821 charging the defendant with fraudulently uttering and publishing the $57.24 cheque are without merit, and are overruled. The trial in respect to that information is without error.

The jury returned a verdict of guilty in each of the two informations against the defendant. After the verdict the court rendered a single judgment of imprisonment upon the verdict. A new trial being awarded for error in the trial of one of the informations, it would seem that justice requires that the single judgment be set aside and the cause remanded for a proper judgment upon the verdict rendered in the other information in which no error is made to appear in the trial.

The Court speaking by Bobbitt, J., in State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734, said:

"Where two or more indictments or counts are consolidated for the purpose of judgment, and a single judgment is pronounced thereon, even though the plea of guilty or conviction on one is sufficient to support the judgment and the trial thereon is free from error, the award of a new trial on the other indictment(s) or count(s) requires that the cause be remanded for proper judgment on the valid count. ``Presumably this (the single judgment) was based upon consideration of guilt on both charges.' Devin, J., later C. J., in State v. Camel, 230 N.C. 426, 53 S.E.2d 313, 315; also, see State v. Braxton, 230 N. C. 312, 52 S.E.2d 895. But the rule is otherwise when, as here, separate judgments, each complete within itself, are pronounced on separate indictments or counts. In such case, a valid judgment pronounced on a plea of guilty to a valid count in a bill of indictment will be upheld. State v. Thorne, supra [238 N.C. 392, 78 S.E.2d 140]; State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9."

The result of the decision is this: The judgment entered below will be set aside and the case remanded for judgment on the verdict upon information #5821; and for a new trial upon information #5820.

In information #5820—new trial.

In information #5821—remanded for judgment.