State v. Brown

103 S.E.2d 341 (1958)

248 N.C. 311

STATE v. Livingston BROWN.

No. 506.

Supreme Court of North Carolina.

April 30, 1958.

Ottway Burton, Don Davis, Asheboro, for defendant, appellant.

Atty. Gen. George B. Patton, Asst. Atty. Gen. Harry W. McGalliard, for the state.

WINBORNE, Chief Justice.

It appears upon the face of the record proper that the verdict is insufficient to support a judgment. State v. Lassiter, 208 N.C. 251, 179 S.E. 891. See, also, State v. Shew, 194 N.C. 690, 140 S.E. 621; State v. Barbee, 197 N.C. 248, 148 S.E. 249.

In the Lassiter case, supra, the defendant was charged in the second count "with having and possessing a quantity of intoxicating liquor against the form of the statute," and the jury returned a verdict of "Guilty of possession." This Court, in opinion by Stacy, C. J., had this to say: "The verdict is not sufficient to support a judgment * * * It neither alludes to the warrant nor uses language to show a conviction of the offense charged therein."

Moreover, in the Lassiter case the Court further declared: "Had the verdict been `guilty of possession as charged in the second count,' or simply `Guilty as charged in the second count,' the situation would have been different, but, when the jury undertakes to spell out its verdict without specific reference to the charge, as in the instant case, it is essential that the spelling be correct," citing State v. Parker, 152 N.C. 790, 67 S.E. 35. See, also, State v. Ellison, 230 N.C. 59, 52 S.E.2d 9.

And in the Shew case, supra, the verdict was "Guilty of receiving stolen goods," and the Court called attention to a similar verdict, in almost exact language in the case of State v. Whitaker, 89 N.C. 472, where, speaking to the insufficiency of the verdict as a basis for judgment in opinion by Ashe, J., the Court said: "It is not sufficiently responsive to the issue; and whenever a verdict is imperfect, informal, insensible, or one that is not responsive to the indictment, the jury may be directed to reconsider it with proper instructions as to the form in which it should be rendered * * * But if such verdict is received by the court and recorded, it would be error to pronounce judgment upon it. The most regular course would be to set aside the verdict and order a venire de novo." See, also, State v. Parker, supra.

Moreover, in the Barbee case, supra, the verdict, after naming defendants, was "guilty of having automobile in their possession knowing it to have been stolen." Speaking thereto, this Court said: "Viewed in the light of the evidence and the charge of the court, the verdict would seem to be defective or insufficient to support a judgment, as it is not responsive to the indictment * * * It is not found that the defendants received the car in question knowing at the time that the same had been feloniously stolen or taken * * *" And the Court held that "on the record as it now appears, the appealing defendant is entitled to a venire de novo."

*343 In the instant case the verdict "Guilty of possession" is without specific reference to the charge and is insufficient to support a judgment; and defendant is entitled to a venire de novo. State v. Lassiter, supra.

Venire de novo.