State v. Accor, No. 26

No. 26 | N.C. | May 13, 1970

Bobbitt, C.J.

Decision of the questions raised by defendants’ assignments of error and discussed in their brief must be deferred until the patent error appearing on the face of the official minutes has been corrected by appropriate proceedings.

In respect of the verdicts as recorded in the official minutes, the portions designated (a), (b) and (c) are in irreconcilable conflict. Obviously, these minute entries were made within the framework of a form which, if used as intended, contemplated that in any case where a verdict of guilty was returned the portions designated (a) and (b) would be stricken. Moreover the portion designated (c) shows the jury found defendant “Guilty of the charge of First Degree Burglary,” but does not show the jury recommended that the punishment be imprisonment for life in the State’s prison.

The case on appeal contains a statement of the proceedings when the verdicts were taken. It sets forth that, as to each defendant, the verdict as announced by the foreman of the jury was that each defendant “is guilty of burglary in the first degree with recommendation that the punishment be imprisonment for life in the State’s prison . . .” Too, it shows that, as to each defendant, the jury was polled and each juror then agreed and assented to that verdict.

Moreover, as stated in the quoted official minutes, fourteen jurors were selected, sworn and empanelled. This is in accord with what is set forth in the case on appeal. The case on appeal indicates the alternate jurors were not on the jury when the verdicts were returned and the jurors were polled. However, both the official minutes and the case on appeal are silent as to when the alternate jurors were excused.

The official minutes must be corrected to speak the truth in respect of the verdicts and in respect of when the alternate jurors, James P. Bigham and Walter A. Rials, were excused. The corrections of the official minutes of the superior court must be made in the superior court. State v. Old, 271 N.C. 341" court="N.C." date_filed="1967-09-20" href="https://app.midpage.ai/document/state-v-old-1351350?utm_source=webapp" opinion_id="1351350">271 N.C. 341, 156 S.E. 2d 756, and cases cited.

The following from the opinion of Higgins, J., in State v. Old, supra, is equally applicable to the present factual situation: “(I)t becomes the duty of this Court, under its supervisory power, to remand the action to the Superior Court with directions that notice be given to counsel and parties, and after hearing, to certify any corrections necessary to make the record conform to the facts. In a criminal case, the solicitor should be given notice as well as defense counsel, and the defendant should be before the Court. It is the duty of the Superior Court to correct its own records in the manner pointed out by this Court -in State v. Cannon, supra (244 N.C. 399" court="N.C." date_filed="1956-09-19" href="https://app.midpage.ai/document/state-v-cannon-1319091?utm_source=webapp" opinion_id="1319091">244 N.C. 399, 94 S.E. 2d 339), and State v. Stubbs, 265 N.C. 420, 144 S.E. 2d 262.”

The use of the form here involved in making minute entries has resulted in serious and recurring errors. The pitfalls are so great, the use of this form should be discontinued.

The action is remanded to the superior court for correction of the official .minutes. As soon as made, the corrections shall be certified to this Court and attached to and made a part of the record on appeal.

Remanded for correction of superior court records.