State v. Thomas

72 S.E.2d 525 (1952) 236 N.C. 196

STATE
v.
THOMAS.

No. 73.

Supreme Court of North Carolina.

September 24, 1952.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and C. G. Powell, Jr., Member of Staff, for the State.

Cameron S. Weeks, T. Chandler Muse, Tarboro, for defendant-appellant.

WINBORNE, Justice.

Defendant, appellant, here presents for consideration and decision three assignments of error based upon exceptions duly taken on the hearing before the judge of Superior Court.

The exceptions are: Number 1, to the refusal of the judge of Superior Court, upon hearing on the record certified from the recorder's court of Edgecombe County, to hear testimony touching upon (a) the circumstances and facts surrounding defendant's having operated his motor vehicle after his license had been revoked, as set out in the record, and (b) the reasonableness of the punishment as bearing upon the question whether or not the court in its discretion should continue defendant on probation;

Number 2, to the dismissal of defendant's petition for writ of certiorari, and remanding the case for execution of sentence; and

Number 3, to the signing of the judgment from which this appeal is taken.

Assignment of error No. 1 is untenable for that when a criminal action has been brought from an inferior court to the Superior Court by means of a writ of certiorari, the Superior Court acts only as a court of review, and in all ordinary instances must act on the facts as they appear of record and can only revise the proceedings as to regularity or on questions of law or legal inference. State v. Tripp, 168 N.C. 150, 83 S.E. 630; State v. Rhodes, 208 N.C. 241, 180 S.E. 84; State v. King, 222 N.C. 137, 22 S.E.2d 241; State v. Miller, 225 N.C. 213, 34 S.E.2d 143; State v. Smith, 233 N.C. 68, 62 S.E.2d 495; State v. Stallings, 234 N.C. 265, 66 S.E.2d 822.

It is pertinent to note that the provisions of Chap. 1038 of 1951 Session Laws of North Carolina, providing that in all cases where a suspended sentence theretofore entered in a court inferior to the Superior Court is invoked by the court inferior to the Superior Court, the defendant shall have the right to appeal therefrom to the Superior Court, and, upon such appeal, the matter shall be heard de novo, but only upon the issue of whether or not there has been a violation of the terms of the suspended sentence, by express proviso, do not apply to a person under the supervision of the Probation Commission, as is the present defendant. Why the exception is made, is not before us.

However, the exceptions on which assignments of error Numbers 2 and 3 are based are well taken These raise the question as to whether error in matters of law appear upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15.

The judge of Superior Court was authorized to consider the facts as they appear of record, and could only revise the proceedings as to regularity, or on questions of law or legal inference. State v. Tripp, supra. But it appears here that the judge of Superior Court made findings of fact which were taken into consideration in his decision, and that his decision is predicated in part upon the fact that defendant did not appeal from the judgment revoking the probation judgment, and that he did not take any action with respect to the same until the filing of application for writ of certiorari. As above held, right of appeal was not open to defendant. His only redress was by petition for writ of certiorari. State v. King, supra.

Moreover, it is apparent from the record that all through the proceeding there is confusion as to the effect of a plea of nolo contendere in the case in which it was entered, and its consequences outside the particular case. The text writers and annotators, interpreting decisions of the courts of the land, say (1) that "all the decisions are in agreement that the plea of nolo contendere cannot be entered by a defendant as a matter of right, but is pleadable only by leave of the court,"— that "its acceptance by the court is entirely a matter of grace". Ann. 152 A.L.R. 253 at page 267; citing among other cases State v. Burnett, 174 N.C. 796, 93 S.E. 473, L.R.A.1918A, 955; State v. Parker, 220 N.C. 416, 17 S.E.2d 475; (2) that in all decisions in point the legal effect of the plea of nolo contendere, after it has been offered by the defendant and accepted by the court, in respect to the case in which it is interposed, is that it becomes an implied confession of guilt, and for the purposes of the case only, equivalent to a plea of guilty. Ann. 152 A.L.R. 253, at page 273; and (3) that as to consequences of plea outside the case, "the fundamental rule, as unanimously accepted by all the courts as the rule expressing the effect of the plea in the case, is that while the plea of nolo contendere may be followed by a sentence, it does not establish the fact of guilt for any other purpose than that of the case to which it applies." That "the difference between it and a plea of guilty, therefore, simply is that while the latter is a confession that binds the defendant in other proceedings, the former has no effect beyond the particular case." That "consequently it cannot be used against the defendant as an admission in any civil suit for the same act." And, that "the rule seems to be the same in case of a later criminal proceeding." Ann. 152 A.L.R. 253, at page 280. See also 14 Am.Jur. 954.

The plea of nolo contendere has been interposed and accepted in numerous cases in North Carolina, among which are these: State v. Burnett, supra; State v. Parker, supra; State v. Ayers, 226 N.C. 579, 39 S.E.2d 607; State v. Beasley, 226 N.C. 580, 39 S.E.2d 607; State v. Stansbury, 230 N. C. 589, 55 S.E.2d 185; State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79; State v. Jamieson, 232 N.C. 731, 62 S.E.2d 52; State v. Horne, 234 N.C. 115, 66 S.E.2d 665.

In State v. Burnett, supra, it is said: "A plea of nolo contendere * * * is equivalent to a plea of guilty in so far as it gives the court the power to punish. * * * The only advantage in a plea of nolo contendere gained by the defendant is that it gives him the advantage of not being estopped to deny his guilt in civil action based upon the same facts. Upon a plea of guilty, entered of record, the defendant would be estopped to deny his guilt, if sued in a civil proceeding."

And in In re Stiers, 204 N.C. 48, 167 S.E. 382, 383, this Court held "that a plea of nolo contendere does not amount to a ``conviction or confession in open court' of a felony", * * * and that "as a disbarment proceeding is of a civil nature, the mere introduction of a certified copy of an indictment, and judgment thereon, based upon a plea of nolo contendere, is not sufficient to deprive an attorney of his license; certainly, when he is present in court, denying his guilt and strenuously contending that his fault, if any, rested upon a technical violation of a statute."

And in State v. Stansbury, supra [230 N. C. 589, 55 S.E.2d 187], in opinion by Ervin, J., it is said: "The defendant's plea of nolo contendere * * * was tantamount to a plea of guilty for the purposes of this particular criminal action."

In the light of these principles, since this Court has recognized the ruling that a plea of nolo contendere cannot be used against a defendant as an admission in a civil action and in an action of the nature of a civil action, In re Stiers, supra, it seems reasonable and logical that such plea ought not to be used against the defendant as an admission in any other criminal action. Hence we hold that a plea of nolo contendere entered by defendant in the recorder's court, at Greenville, N. C., to the charge of operating his automobile after his license had been suspended cannot be used against him as an admission on the question as to whether or not he has violated the condition of the judgment suspended by the recorder's court of Edgecombe County. Proof of such violation, if any, must be made independently of such plea, or of evidence or admission by defendant, that such plea was made.

Moreover, the law does not sanction a conditional plea of nolo contendere. State v. Horne, supra. Hence if defendant entered a plea of nolo contendere in the recorder's court at Greenville, N. C., to the charge of operating a motor vehicle after his license had been suspended, the basis on which it is contended he violated the conditions of his probation judgment, and it was accepted by the court, the recorder may not find him guilty of the charge. Thus the super-added clause "and was found guilty by the court" would be a misapprehension of the effect of a plea of nolo contendere in a criminal action, and could not be upheld. See McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, and numerous other cases.

This is so, whether the misapprehension originated with the recorder of the Greenville court or with the probation officer. Further it may be observed here that the suspended sentence should not be invoked on the unverified report of the probation officer.

"The matters involved—the enforcement of the criminal law and the liberty of the citizen—are worthy of exactitude and clear understanding", declared the late Chief Justice Stacy in State v. Horne, supra [234 N.C. 115, 66 S.E.2d 666], in opinion written in accordance with the Court's decision and filed by order of the Court after his death. So say we all now on this appeal.

For errors pointed out, the judgment of the Superior Court from which this appeal is taken, and the judgment of the recorder's court of Edgecombe County invoking the suspended sentence will be set aside, and the cause remanded to the Superior Court of Edgecombe County to be by it remanded to the recorder's court of said county for hearing in accordance with law and justice, on the question of fact as to whether defendant has violated the condition on which the sentence was suspended,—at which hearing defendant shall have an opportunity to be heard, and to offer evidence.

Error and remanded.