State v. Swinney , 271 N.C. 130 ( 1967 )

Higgins, J.

The defendant entered a plea of nolo contendere to the charge of involuntary manslaughter. While the plea' is- not a confession of guilt for all purposes, State v. Thomas, 236 N.C. 196, 72 S.E. 2d 525, nevertheless it has the same effect insofar as punishment is concerned as a plea of guilty. State v. Cooper, 238 N.C. 241, 77 S.E. 2d 695; State v. Shepherd, 230 N.C. 605, 55 S.E. 2d 79. Punishment for involuntary manslaughter may be by fine or imprisonment or both in the discretion of the court. G.S. 14-18; State v. Adams, 266 N.C. 406, 146 S.E. 2d 505; State v. Blackmon, 260 N.C. 352, 132 S.E. 2d 880; State v. Grice, 265 N.C. 587, 144 S.E. 2d 659; State v. Dunn, 208 N.C. 333, 180 S.E. 708. The imprisonment, however, may not exceed ten years. The defendant's contention that involuntary manslaughter is a misdemeanor for which punishment cannot exceed two years is not sustained.

By exception and assignment of error, the defendant challenges the sentence of 5-7 years in prison upon the ground the record clearly shows, the presiding judge imposed the sentence, not for involuntary manslaughter to which the defendant had entered a plea, but for having participated in the dinner and dance party held in the Swin-ney home at which liquor was served. The record shows the party was over and the guests had departed; the defendant had gone to bed and was asleep when the deceased jumped on the bed and began assaulting her. The defendant had introduced evidence of her good character; there was none to the contrary. The State’s only witness, Officer Clontz, said there was nothing against her. He corroborated her story that she first fired warning shots. He found two bullet holes in the walls of the bedroom. He corroborated her story that she was assaulted by testifying he saw the bruises and marks on her neck and arms. He corroborated her story that she was in bed when the attack began by testifying he found tracks in the bed “made by a man’s shoe.”

Notwithstanding evidence the defendant shot in self-defense, the plea of nolo contendere would permit the court to impose a sentence of not more than ten years for involuntary manslaughter. Being within the limits there is a presumption the judgment and sentence are regular and valid. That presumption, however, is not conclusive, and .if the judge by his own pronouncement shows clearly that he imposed this sentence for a cause not embraced within the indictment and the plea, then the presumption of regularity is overcome, and his sentence is in violation of the defendant’s rights. When Judge McLaughlin acted as he said he did under the belief that it would be a dereliction of his duty to the community if he did not punish the defendant severely on account of the party, he exceeded his judicial power and committed error of law. His lengthy cross-examination of the defendant and the statement in connection with and as a part of the sentencing procedure permitted no other reasonable conclusion or inference but that he was punishing not for involuntary manslaughter but because of the party in the Swinney home. If there was anything unlawful in connection with the party of which there was no evidence in the record implicating the defendant, that should be the subject of another indictment. The evidence is conclusive, however, that the entire trouble between the defendant and her husband occurred after the party was over, the guests were gone, and the defendant had gone to bed and was asleep.

We commend Judge McLaughlin for placing in the record the reason for his sentence. It clearly appears that sentence was not for involuntary manslaughter. “A fair jury in criminal cases and an impartial judge in all cases are basic requirements of due process.” Rice v. Rigsby, 259 N.C. 506, 131 S.E. 2d 469; Ponder v. Davis, 233 N.C. 699, 65 S.E. 2d 356; In Re Murchison, 349 U.S. 133, 99 L. Ed. 942. “Every suitor is entitled by the law to have his cause considered with the cold neutrality of the impartial judge.” State v. Belk, 268 N.C. 320, 150 S.E. 2d 481.

Upon a plea of nolo contendere it is usual procedure for the court to hear evidence “to enable it to exercise a sound discretion in determining the extent of the punishment.” State v. Cooper, 238 N.C. 241, 244, 77 S.E. 2d 695, 698. It may be, therefore, that in this case the State had other evidence which it did not produce; that defendant knew of this evidence; and that she was well advised to enter the plea of nolo contendere. However, the evidence in this record before us — which was also the evidence before the judge — is amply sufficient to make out a case of self-defense.

As Parker, J. (now C.J.), said in State v. Barbour, 243 N.C. 265, 267, 90 S.E. 2d 388, 390: “If, after hearing evidence to aid the Court in determining the sentence to be imposed, it appears that the defendant is not guilty, the Court may advise him to withdraw his plea of nolo contendere, and stand a jury trial.” Of course, in the absence of a request by a defendant to withdraw his plea of nolo contendere, the court ordinarily will not strike out such a plea ex mero motu. State v. Shepherd, 230 N.C. 605, 55 S.E. 2d 79. The evidence at the next hearing will no doubt chart the correct course for court and counsel.

For the reasons assigned, the judgment is vacated, and the cause is remanded for further consideration as to punishment. The judge on whom falls the responsibility may review the record of the trial and conduct such further inquiry as will enable him to enter a proper judgment.

The prison sentence is vacated and the cause remanded for a proper judgment.