State v. Jones
179 S.E.2d 433
N.C.
1971
Check Treatment
MOOEE, Justice.

Defendant first contends the court erred in ordering defendant committed to a State hospital on 5 December 1968.

Defendant is a man of above average intelligence, a high school graduate who had completed three semesters of business college. He received specialized medical training in the Army Medical Corps and had been stationed in Womack General Hospital. Originally he was arrested on three charges of first degree burglary and one charge of assault on a female with intent to *264 commit rape. At his trial on 5 December 1968 on one bill of indictment charging burglary in the first degree and on another charging assault on a female with intent to commit rape, defendant entered pleas of not guilty. While a jury was being selected, the defendant, through his privately retained counsel, withdrew his pleas of not guilty and entered a plea of guilty as charged in both cases. Judge Canaday carefully examined defendant concerning the voluntariness of his plea and found that it was freely and voluntarily entered. Such findings were supported by the evidence. Where the evidence supports the findings that defendant entered a plea of guilty voluntarily and with full knowledge of his rights, the acceptance of the plea will not be disturbed. Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S.Ct. 1463 (1970); Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 785, 90 S.Ct. 1458 (1970); State v. Caldwell, 269 N.C. 521, 153 S.E. 2d 34; State v. Coleman, 266 N.C. 355, 146 S.E. 2d 30; Wiggins v. Smith, 434 F. 2d 245 (5th Cir., 1970); 2 Strong’s N.C. Index 2d, Criminal Law § 23, p. 511.

On the plea of guilty to the charge of burglary in the first degree, the trial court had no discretion as to punishment. Punishment by life imprisonment was prescribed by statute, G.S. 15-162.1, then in force but repealed in 1969. On the plea of guilty to the charge of assault on a female with intent to commit rape, Judge Canaday could have imposed sentence of not less than one nor more than fifteen years. But before sentence was pronounced, defendant’s counsel moved that defendant be sent to a mental hospital under the provisions of G.S. 122-84 and offered the testimony of Dr. Meymandi in support of this motion. The court then entered the order of 5 December 1968 committing the defendant to the hospital for treatment. This order was entered at defendant’s request. No exception was taken to its entry, and the defendant does not attempt to show that he was prejudiced by being sent to a hospital for treatment before being imprisoned.

An assignment of error not supported by an exception is ineffectual and will not be considered on appeal. State v. Rogers, 275 N.C. 411, 168 S.E. 2d 345; State v. Thompson, 267 N.C. 653, 148 S.E. 2d 613; State v. Maness, 264 N.C. 358, 141 S.E. 2d 470; Tynes v. Davis, 244 N.C. 528, 94 S.E. 2d 496; 3 Strong’s N.C. Index 2d, Criminal Law § 161, p. 113. Since no *265 exception was taken to the entry of Judge Canaday’s order of 5 December 1968, there is no basis for this assignment of error, and no question of law is presented to this Court for decision. Knutton v. Cofield, 273 N.C. 355, 160 S.E. 2d 29; Tynes v. Davis, supra; Riysbee v. Perkins, 242 N.C. 502, 87 S.E. 2d 926. See Rules 19(3) and 21, Rules of Practice in the Supreme Court, 254 N.C. 783. Nevertheless, due to the seriousness of the case, we have considered this assignment. It is evident from the record that had defendant been sent to prison before treatment, he would have been a menace to others. Judge Canaday properly concluded that defendant should be treated before imprisonment. The procedure used and the words contained in the order committing defendant to the hospital were perhaps unfortunate. If defendant had sufficient mental capacity to plead, he had sufficient mental capacity to receive sentence. The action of the trial judge in accepting the plea but then sending defendant to the hospital for treatment before sentencing created an apparent contradiction. The record shows defendant had ample mental capacity both to plead and to be sentenced. To avoid any apparent conflict, the trial judge would have been better advised to have sentenced defendant after accepting the plea and then to have requested the prison authorities to give defendant such medical treatment as he might require. Doubtless the trial judge in entering his order worded it in such a manner as to assure defendant the benefit of treatment under G.S. 122-84. Conceding arguendo that the entry of the order committing defendant to a State hospital was error, it is impossible to see how defendant was prejudiced thereby. Such error, if any, was harmless. Harmless error is not sufficient to justify a new trial. The defendant must show that the error was material, prejudicial, and amounted to a denial of some substantial right. State v. Turner, 268 N.C. 225, 150 S.E. 2d 406; State v. Honeycutt, 237 N.C. 595, 75 S.E. 2d 525; 3 Strong’s N.C. Index 2d, Criminal Law § 167.

Defendant next assigns as error the court’s denial of his motion to withdraw the plea of guilty and to allow him to enter a plea of not guilty. He first contends that the plea of guilty was obtained through duress. The record does not so indicate. There is no evidence of duress, and the defendant did not attempt to offer such evidence. Judge Canaday at the 5 December 1968 hearing, after examining defendant, expressly *266 found that the plea was entered freely, understandingly, and voluntarily, without undue influence, compulsion or duress. “. . . (O)rdinarily one Superior Court judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action. ...” 2 Strong’s N.C. Index 2d, Courts § 9, p. 446; Bank v. Hanner, 268 N.C. 668, 151 S.E. 2d 579; Stanback v. Stanback 266 N.C. 72, 145 S.E. 2d 332; In re Burton, 257 N.C. 534, 126 S.E. 2d 581. In the absence of any evidence of duress, Judge Cooper properly overruled the motion on that ground.

Defendant next contends that defendant lacked mental capacity to enter his plea. This contention is without merit.

A clear distinction must be drawn between the insanity which precludes responsibility for crime and insanity which precludes trial. 21 Am. Jur. 2d, Criminal Law § 63 (1965). The test for insanity which precludes responsibility for crime is the ability to distinguish the difference between right and wrong. State v. Propst, 274 N.C. 62, 161 S.E. 2d 560; State v. Spence, 271 N.C. 23, 38, 155 S.E. 2d 802, 813; State v. Johnson, 256 N.C. 449, 124 S.E. 2d 126; State v. Willis, 255 N.C. 473, 121 S.E. 2d 854; State v. Scales, 242 N.C. 400, 87 S.E. 2d 916; 2 Strong’s N. C. Index 2d, Criminal Law § 5.

“In determining a defendant’s capacity to stand trial, the test is whether he has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed.” 21 Am. Jur. 2d, ibid; State v. Propst, supra; 2 Strong’s N. C. Index 2d, Criminal Law § 29. If a defendant is capable of understanding the nature and object of the proceedings against him and to conduct his defense in a rational manner, he is sane for the purpose of being tried, though on some other subject his mind may be deranged. This is the common law rule to determine a defendant’s capacity to stand trial. 21 Am. Jur. 2d, ibid.

Defendant’s own witness, Dr. Meymandi, testified on 2 December 1968 that defendant was without psychosis (not insane); that he knew right from wrong and was able to assist his attorney in his defense of these cases. The evidence for the State specifically shows that defendant had no mental dis *267 turbance which would interfere with his ability to plead to the bill of indictment. It further shows that defendant knew the difference between right and wrong, that he was able to assist in his own defense, and was fully aware of the consequences of his acts.

Dr. Meymandi further testified that defendant was suffering from a sociopathic personality, which he explained meant that defendant was without- conscience. In People v. McElroy, 125 Ill. App. 2d 237, 260 N.E. 2d 410 (1970), the Court, in a case involving the mental capacity of the defendant to plead guilty, said: “ . . . While a defendant may possess a sociopathic personality and suffer from psychological and social disturbances, these circumstances' without more are not sufficient to raise a bona fide doubt as to his competence. The People v. Hammond, Ill. 1970, 259 N.E. 2d 44.”

Defendant was charged with three capital crimes and another serious felony. On advice of counsel of his own choosing, defendant decided to enter a plea of guilty in one of the capital cases and the felony charge, and accept life imprisonment, as then provided by law on such plea, rather than face the dangers posed by three capital charges. The fact that the trial court, on motion of defendant and on recommendation of defendant’s doctor, prescribed treatment for the defendant before imposing punishment does not warrant a new trial.

In the proceeding in Superior Court, we find no prejudicial error.

No error.