State v. Hamilton

108 S.E.2d 46 (1959)

250 N.C. 85

STATE v. Linnie HAMILTON. STATE v. Garfield HAMILTON.

No. 362.

Supreme Court of North Carolina.

April 8, 1959.

*48 R. F. Crouse, Sparta, for appellant Linnie Hamilton.

Johnston & Johnston, Jefferson, for appellant Garfield Hamilton.

Malcolm B. Seawell, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

WINBORNE, Chief Justice.

At the threshold of this appeal this question arises: Did the trial court err in refusing to accept the verdict first returned by the jury? Manifestly, (first) as to defendant Garfield Hamilton, the answer is "Yes". See State v. Perry, 225 N.C. 174, 33 S.E.2d 869, and State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880, and cases cited.

In the Perry case, supra [225 N.C. 174, 33 S.E.2d 870], "While a verdict is a substantial right * * * it is not complete until it is accepted by the court for record * * *. This does not imply, however, that in accepting or rejecting a verdict the presiding judge may exercise unrestrained discretion. While he should scrutinize a verdict with respect to its form and substance and to prevent a doubtful or insufficient finding from becoming the record of the court, his power to accept or reject the jury's finding is restricted to the exercise of a limited legal discretion." And "when, and only when, an incomplete, imperfect, insensible, or repugnant verdict or a verdict which is not responsive to the issues or indictment is returned, the court may decline to accept it and direct the jury to retire, reconsider the matter, and bring in a proper verdict."

Testing the verdict first returned as to Garfield Hamilton, it appears to be complete, perfect, sensible and consonant with and responsive to charge contained in the bill of indictment. It is clear and definite in meaning. Therefore defendant Garfield Hamilton had a substantial right to have judgment pronounced in accordance therewith. And for error in this respect, the verdict last returned and the judgment pronounced thereon will be set aside, and the case remanded to Superior Court for proper judgment on the verdict first returned.

Secondly, as to defendant Linnie Hamilton: If it be that the verdict first returned against him were incomplete, defendant contends and we think rightly so there is error in the instruction given in response to the inquiry from the jury as to whether the jury be allowed to change *49 its verdict either up or down in both cases, the subject of Exception 3. Assignment 3.

Thus it seems proper that the verdict secondly rendered and the judgment pursuant thereto be set aside and that the cause be remanded for new trial. State v. Gatlin, supra.

On appeal by Garfield Hamiltonremanded for judgment.

On appeal by Linnie Hamiltonnew trial.