State v. . McLamb
180 S.E. 586
N.C.
1935
Check Treatment
CoNNOK, J.

There was no error in the refusal of the judge presiding at the trial of this action at the August Special Term, 1934, of the Superior Court of Scotland County to hear evidence which the defendants offered to introduce in support of their pleas in abatement and of former conviction, tending to show statements made by the judge presiding at the March Term, 1934, of said court to counsel for the defendants as to his purpose in making the orders vacating the judgments and setting aside the verdicts against the defendants at said term. Nor was there error in the refusal of the judge to hear evidence tending to show that said orders were made, as contended by the defendants, in conse *384 quence of statements made by L. A. Hodges and Herwood Hicks, after tbe judgments bad been rendered, and tbe verdicts returned against tbe defendants, at said March Term, 1934. Tbe record shows that tbe orders were made by tbe judge at said March Term in bis discretion, and that neither of tbe defendants, both of whom were present in court with their counsel, objected or excepted to said orders. Unless tbe orders vacating tbe judgments and setting aside tbe verdicts at tbe March Term, 1934, of tbe court are void for tbe reason that tbe judge was without power to make them, tbe said orders are binding on tbe defendants, and were not subject to challenge by tbe defendants at tbe August Special Term, 1934, of tbe court.

In Allison v. Whittier, 101 N. C., 490, 8 S. E., 338, it- is said by Smith, G. J.: “It is a settled rule that tbe court retains control of cases pending at any term for its actions, and may recall, reverse, or modify anything done previously before its close. Until its termination everything is in fieri, and this liability to correction or revocation underlies any action it may have taken in tbe cause. It involves an exercise of discretion unrestrained by what may have been previously done, and its efficacy depends alone upon tbe legal capacity of tbe judge to do tbe act, and this alone is open to an inquiry in tbe reviewing Court. Of this litigants and counsel are required to take notice, and nothing is beyond recall until tbe session ends with tbe completion of its business. In tbe language of this Court in Branch v. Walker, 92 N. C., 87, spoken in reference to tbe power of a presiding judge, Tbe action was not ended when tbe judgment was entered. Tbe record stood open for motions like tbe one before us, and other motions that might be made.’ ”

In S. v. Chestnutt, 126 N. C., 1121, 36 S. E., 278, it is said by Fair-cloth, G. J.: “A court has power during tbe term to correct, modify, or recall an unexecuted judgment in either criminal or civil cases. S. v. Warren, 92 N. C., 825. Tbe proceedings of a court are in fieri until tbe close of a term, and tbe judge may modify or vacate any order made during tbe term, and bis action is not reviewable unless it appears that be has grossly abused bis power, resulting in ojipression. This is not only tbe rule, but it is reasonable and often corrects mistakes made without full information. We think it common practice after verdict and judgment in criminal cases to change tbe judgment as may seem just to tbe court. Allison v. Whittier, 101 N. C., 490; Gwinn v. Parker, 119 N. C., 19. These authorities refer to tbe power and control of the court over its own judgments.”

Under these authorities, tbe judge presiding at tbe March Term, 1934, of tbe Superior Court of Scotland County, bad tbe power, in tbe exercise of bis discretion, to make tbe orders vacating tbe judgment and *385 setting aside tbe verdicts against tbe defendants at said term, and granting tbe defendants a new trial at tbe next term of tbe court.

There was no error in tbe refusal of tbe judge at tbe August Special Term, 1934, of tbe Superior Court to sustain tbe defendants’ pleas in abatement and of former conviction at tbe March Term, 1934, of said court.

In S. v. Lee et al., 114 N. C., 845, 19 S. E., 375, tbe defendants were convicted at December Term, 1893, of tbe Superior Court of Forsyth County of an attempt to burn a dwelling-house. After tbe verdict and judgment, tbe defendants moved in arrest of tbe judgment. Tbe judge, in bis discretion, vacated tbe judgment, set aside tbe verdict, and ordered a new trial. A new bill of indictment was sent by tbe solicitor for tbe State to tbe grand jury, and was returned a true' bill. Tbe defendants were then tried and convicted on tbe new indictment. On their appeal to this Court from tbe judgment it was said by Clark, C. J.: “As to tbe plea of former conviction, tbe former verdict was against tbe defendants, and having been set aside in tbe discretion of tbe court, nothing remains to support tbe plea of former conviction.”

Tbe evidence for tbe State at tbe trial of this action tended to show that during tbe May Term, 1933, of tbe Superior Court of Scotland County, tbe defendant James Raynor delivered to L. A. Hodges and Derwood Hicks tbe sum of $500.00 as a bribe for false testimony given by them in behalf of tbe defendant I. B.- McLamb, who was tried at said term of court on an indictment charging him with feloniously receiving stolen property knowing tbe same to have been stolen; and that tbe said sum of $500.00 was delivered to tbe said James Raynor by tbe said I. B. McLamb for tbe purpose of bribing tbe said L. A. Hodges and tbe said Derwood Hicks, in pursuance of a conspiracy theretofore entered into by tbe said L. A. Hodges, Derwood Hicks, James Raynor, and I. B. McLamb. This evidence, together with evidence offered by tbe defendant I. B. McLamb tending to contradict tbe evidence of tbe State against him, was submitted to tbe jury, and was sufficient to support tbe verdict on which tbe defendants were sentenced to imprisonment in tbe State’s Prison.

We find no error in tbe trial. Tbe judgments are affirmed.

No error.

Stacy, O. J., and BrogkdeN, J., dissent.