State v. Hemphill , 273 N.C. 388 ( 1968 )

160 S.E.2d 53 (1968) 273 N.C. 388

STATE
v.
Frank HEMPHILL.

No. 331.

Supreme Court of North Carolina.

March 27, 1968.

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

Joseph H. Davis, Goldsboro, for defendant, appellant.

BRANCH, Justice.

The sole question presented for decision is: Did the trial court err in failing to accept the original verdict and to pass judgment thereon?

It is well established by our decisions that when a jury, in a criminal case, returns a verdict of guilty to some of the counts, but not to all, such verdict has the effect of an acquittal on the counts not referred to. State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651; State v. Broome, 269 N.C. 661, 153 S.E.2d 384; and State v. Wolfe, 227 N.C. 461, 42 S.E.2d 515.

Defendant contends that when the jury responded "guilty of larceny" to the Clerk's original inquiry, "How do you find the defendant as to the charge of breaking and entering?" the jury returned a verdict of guilty of the misdemeanor of larceny, and that defendant was thereby acquitted of the other charge.

A verdict is the unanimous decision made by the jury and reported to the court. State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880. It is a substantial right, but it is not complete until it is accepted by the court for record. State v. Perry, 225 N.C. 174, 33 S.E.2d 869. The court should examine a verdict as to form and substance so as to prevent a doubtful or insufficient finding from becoming the record of the court, but this power to accept or reject a verdict is restricted to the exercise of a limited legal discretion. State v. Perry, supra; State v. Bazemore, 193 N.C. 336, 137 S.E. 172.

In the case of State v. Rhinehart, supra, this Court quoted from State v. Perry, supra, as follows:

"``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. Arrington, 7 N.C. 571; State v. McKay, 150 N.C. 813, 63 S.E. 1059; State v. Bazemore, supra [193 N.C. 336, 137 S.E. 172]; State v. Noland, 204 N.C. 329, 168 S.E. 412; Queen v. DeHart, 209 N.C. 414, 184 S.E. 7.'"

A verdict must be responsive to the issue or issues submitted by the court. State v. Perry, supra.

Here, the indictment charged felonious larceny, and the court by its charge submitted the issue of felonious larceny. All the evidence shows the property to be of a value in excess of $200.00 and to have been taken in connection with a breaking and entering. Thus it was not necessary for the court to submit to the jury the misdemeanor of larceny. G.S. § 14-72; State v. Cooper, 256 N.C. 372, 124 S.E.2d 91.

The juror's answer "guilty of larceny" was not responsive to the question, "How do you find the defendant as to the charge of breaking and entering?" The jury was not asked a general question. Rather, the question was directed explicitly to breaking and entering, and the juror's answer when considered in context with the question asked, becomes not only unresponsive but was also incomplete and repugnant.

When the initial attempted verdict was brought in, the trial judge in accord with procedure approved in State v. Gatlin, supra, without suggesting the alteration of the substance of the verdict, restated the charges against defendant and directed the jury to retire for further consideration of its verdict.

The polling of the jury, at defendant's request, reflected the unanimity of the verdict as recorded. State v. Cephus, 241 N.C. 562, 86 S.E.2d 70.

The court properly refused to accept the original verdict.

No error.