State v. . Camby , 209 N.C. 50 ( 1935 )

DEVIN, J., took no part in the consideration or decision of this case. Criminal prosecution, tried upon indictment charging the defendant Lonnie Camby, and another, (1) with the larceny of a number of chickens of the value of more than $20, the property of Wylie H. McGinnis; and (2) with feloniously receiving said chickens knowing them to have been feloniously stolen or taken in violation of C. S., 4250.

The defendant entered a conditional plea, and asked the court to hear and determine the matter under chapter 23, Public Laws 1933, as amended by chapter 469, without the intervention of a jury, to which the solicitor agreed.

Motion for judgment of nonsuit at the close of State's evidence; overruled; exception; renewed at the close of all the evidence; overruled; exception.

The court adjudged the defendant to be "guilty as charged in the bill of indictment," and sentenced him to the roads for 3 1/2 years.

The defendant appeals, assigning errors. It is provided by chapter 23, Public Laws 1933, as amended by chapter 469, that in all trials in the Superior Court, wherein the defendant stands charged with an offense other than capital, it shall be competent for the defendant, when represented by counsel, to enter a conditional plea of guilty, or nolo contendere, if the court shall permit the latter plea; and thereupon the court may hear and determine the matter without the intervention of a jury. The defendant is permitted to demur to the evidence as in cases under the Mason Act, C. S., 4643, preserve his exceptions thereto, if overruled, and have the benefit of same on appeal. It is further provided that if upon the evidence the court is satisfied beyond a reasonable doubt of the defendant's guilt, he shall proceed to judgment and sentence upon the plea entered in like manner as upon a conviction by a jury. If not so satisfied, the plea is to be stricken out and a verdict of not guilty entered.

The practical effect of a "conditional plea" under this statute, as we understand it, is to waive a jury trial and have the court hear and determine the matter as upon a plea of "Not guilty." This may not be done in the Superior Court — the court of last resort so far as a jury trial is concerned. S. v. Crawford, 197 N.C. 513, 149 S.E. 729; S. v.Rouse, 194 N.C. 318, 139 S.E. 433; S. v. Hartsfield, 188 N.C. 357,124 S.E. 629; S. v. Pulliam, 184 N.C. 681, 114 S.E. 394; S. v.Rogers, 162 N.C. 656, 78 S.E. 293. The reason for this holding is to be found in the language of the Constitution: "No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal." Const., Art. I, sec. 13.

It is permissible under this section for the General Assembly to provide for the trial of petty misdemeanors in inferior courts with the right of appeal to the Superior Court. S. v. Pasley, 180 N.C. 695, 104 S.E. 533;S. v. Tate, 169 N.C. 373, 85 S.E. 383; S. v. Hyman, 164 N.C. 411,79 S.E. 284; S. v. Brittain, 143 N.C. 668, 57 S.E. 352; S. v. Lytle,138 N.C. 738, 51 S.E. 66.

"Two decisions of this Court — S. v. Stewart, 89 N.C. 564; S.v. Holt, 90 N.C. 749 — have held that in the Superior Court, on indictment originating therein, trials by jury in a criminal action could not be waived by the accused" — Hoke, J., in S. v. Wells, 142 N.C. 590,55 S.E. 210.

The parties are not permitted to change the policy of the law and substitute a new method of trial in criminal prosecutions for that of trial by jury as guaranteed by the Constitution. S. v. Crawford, supra. Nor can this be done by act of assembly. S. v. Pulliam, supra; S. v. Beasley,196 N.C. 797, 147 S.E. 301.

The decision in S. v. Banks, 206 N.C. 479, 174 S.E. 306, is not at variance with what is said above.

Let the judgment be stricken out and the cause remanded for trial according to law.

Error and remanded.

DEVIN, J., took no part in the consideration or decision of this case.