State v. Gatlin

Winborne, J.

While appellant brings to this Court, and discusses in brief filed here, many assignments of error, based upon exceptions appearing in the case on appeal, the one focused on exception to the verdict is well taken, and sufficient to upset the judgment from which the appeal is taken, and to require a

venire de novo. S. v. Lassiter,

208 N.C. 251 , 179 S.E. 891 ;

S. v. Cannon,

218 N.C. 466 , 11 S.E. 2d 301 ;

S. v. Hill,

224 N.C. 782 , 32 S.E. 2d 268 ;

S. v. Yow,

227 N.C. 585 , 42 S.E. 2d 661 ;

S. v. Ellison,

230 N.C. 59 , 52 S.E. 2d 9 .

“A verdict is the unanimous decision made by the jury and reported to the court,” so declared this Court in opinion by

Walher, J.,

in

Smith v. Paul,

133 N.C. 66 , 45 S.E. 348 , quoting from

James v. State,

55 Miss. 57 . See also

Sitterson v. Sitterson,

191 N.C. 319 , 131 S.E. 641 .

And a verdict is a substantial right.

Wood v. R. R.,

131 N.C. 48 , 42 S.E. 462 ;

Sitterson v. Sitterson, supra; S. v. Perry,

225 N.C. 174 , 33 S.E. 2d 869 .

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Moreover, this Court in

S. v. Godwin,

138 N.C. 582 , 50 S.E. 277 , in opinion by

Brown, J.,

epitomizing previous decisions of tbis Court, beginning with

S. v. Arrington,

7 N.C. 571 , declared: “Before a verdict returned into open court by a jury is complete, it must be accepted by the court for record. It is the duty of the judge to look after the form and substance of a verdict so as to prevent a doubtful or insufficient finding from passing into the records of the court. For that purpose the court can, at any time while the jury are before it or under its control, see that the jury amend their verdict in form so as to meet the requirements of the law. When a jury returns an informal, insensible, or a repugnant verdict, or one that is not responsive to the issues submitted, they may be directed by the court to retire and reconsider the matter and bring in a proper verdict,

i.e.,

one in proper form. But it is especially incumbent upon the judge not even to suggest the alteration of a verdict in substance, and in such matters he should act with great caution.” See also

S. v. McKay,

150 N.C. 813 , 63 S.E. 1059 ;

S. v. Parker,

152 N.C. 790 , 67 S.E. 35 ;

S. v. Bagley,

158 N.C. 608 , 73 S.E. 995 ;

Allen v. Yarborough,

201 N.C. 568 , 160 S.E. 833 ;

S. v. Noland,

204 N.C. 329 , 168 S.E. 412 ;

Baird v. Ball,

204 N.C. 469 , 168 S.E. 667 ;

S. v. Lassiter, supra; Queen v. DeHart,

209 N.C. 414 , 184 S.E. 7 ;

S. v. Perry, supra; Edwards v. Motor Co.,

235 N.C. 269 , 69 S.E. 2d 550 .

Indeed, in

Edwards v. Motor Co., supra, Johnson, J.,

writing for the Court, said: “When the findings are indefinite or inconsistent, the presiding judge may give additional instructions and direct the jury to retire again and bring in a proper verdict, but he may not tell them what their verdict shall be,” citing

Baird v. Ball, supra.

In the light of these principles we have no hesitancy in holding that the verdict “Guilty of driving” is no crime and is not responsive to the charge in the indictment. Hence the trial judge had the discretionary power to give further instructions to the jury and order that they retire and give further consideration to the matter, and bring in a proper verdict. But the judge was without authority to suggest to the jury what their verdict should be.

The Attorney-General, in his brief, cites and relies upon these cases:

S. v. Lucas,

124 N.C. 825 , 32 S.E. 962 ;

S. v. Walker,

170 N.C. 716 , 86 S.E. 1055 ;

S. v. Walls,

211 N.C. 487 , 191 S.E. 232 ;

S. v. Wilson,

218 N.C. 556 , 11 S.E. 2d 567 ;

S. v. Sears,

235 N.C. 623 , 70 S.E. 2d 907 , as authorities supporting the validity of the manner in which the verdict was received in the instant case. However, careful consideration of the factual situations in these cases leads to the conclusion that they are not out of harmony with the principles hereinabove set forth. But if they were, this Court would not be inclined to follow them, and deviate from the salutary principles, — long safeguarded in the pages of our decisions.

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For reasons stated the judgment below is stricken out. A trial anew is ordered as to appellant.

Venire de novo.