State v. Fields

183 S.E.2d 666 (1971)

279 N.C. 460

STATE of North Carolina v. Adam FIELDS, Jr.

No. 31.

Supreme Court of North Carolina.

October 13, 1971.

*668 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Isham B. Hudson, Jr., for the State.

Floyd & Floyd, Fairmont, for defendant appellant.

SHARP, Justice:

The evidence in this case was plenary to withstand defendant's motion for nonsuit and to sustain the verdict. However, the condition of the record, which the assistant solicitor "accepted as a correct statement of case on appeal" the same day it was served upon him, leaves us no alternative except to order a new trial.

Defendant assigned as error the following portions of his Honor's charge, the error and prejudice of which are apparent:

"If you find from the evidence beyond a reasonable doubt that on the 28th of March, 1970, Adam Fields, Jr. intentionally shot and killed Kernis Lee Locklear, was natural and probable result of Adam Fields, Jr.'s act, but that Adam Fields, Jr. has satisfied you he was an aggressor after retreating as far as he could, killed Kernis Lee Locklear under such circumstances as reasonably arise in your minds was necessary in order to save himself from death or great bodily harm; that circumstances did create such belief in defendant's mind, and he did not use excessive force, it would be your duty to return a verdict of not guilty; if you are not satisfied that he hadn't retreated as far as he safely could have.

"* * *.

"Furthermore, if you find Adam Fields, Jr. has failed to satisfy you he was the aggressor, but has satisfied you he had no murderous intent when he entered the fight, you would find him guilty of voluntary manslaughter."

We are entirely convinced that Judge Collier did not utter the foregoing gibberish. However, it is axiomatic that the record which is certified to us imports verity, and we are bound by it. Rogers v. Rogers, 265 N.C. 386, 144 S.E.2d 48; 1 N.C. Index 2d, Appeal and Error § 42 (1967). Whether the initial responsibility for its presence in the case on appeal belongs to the court reporter we do not know. However, the final responsibility for this case on appeal rests with the solicitor, whose assistant accepted service and agreed to it "as a correct statement."

We are constrained to repeat the admonition to solicitors which we so recently gave in State v. Fox, 277 N.C. 1, 28-29, 175 S.E.2d 561, 578 (1970):

"Although the primary duty of preparing and docketing a true and adequate transcript of the record and case on appeal in a criminal case rests upon defense counsel, G.S. § 1-282, G.S. § 15-180, it is the duty of the solicitor to scrutinize the copy which appellant serves upon him. If it contains omissions, errors, or misleading juxtapositions it is the solicitor's responsibility to file exceptions or a counter case within his allotted time. He tried the case before the jury, and he is the State's only representative who is in position to evaluate the appellant's statement of the case on appeal. The Attorney General, who must defend the case in the Appellate Division, is dependent upon the solicitor for a valid record of the trial below. When the solicitor accepts the defendant's case on appeal and it is certified to the Appellate Division, it imports verity and the appellate court is bound by the record as certified. *669 * * * It costs the State and profits a solicitor nothing if, after spending ten days in a trial such as this, we order a new trial for an error appearing in the transcript when none actually occurred. * * * [W]e remind the solicitors that their obligation to a case does not end when the judge pronounces sentence. Their duty includes policing the case on appeal. This, of course, necessitates the expenditure of the time and effort required to make a careful and painstaking examination of it and to file exceptions or counter case if either is necessary to provide a correct record and a case on appeal which truly and intelligibly sets out the proceedings as they occurred. Only upon such a record can the Attorney General and the Appellate Division do justice to the State and to the defendant."

We also remind defense counsel that, as officers of the court, they have an equal duty to see that reporting errors are corrected. Their duty to a client does not embrace the right to perpetuate and take advantage of such mistakes. For example, defendant assigns as error the bracketed portion of the following excerpt from the charge as it appears in the transcript, and argues that it constituted an expression of opinion:

"A photograph was introduced in this case for the purpose of illustrating and explaining the testimony of the witness, [I believe the deputy sheriff.]"

Obviously a comma has been omitted after the word believe. The clear import of the quoted paragraph is that the judge thought it was the testimony of the deputy sheriff which the photograph purported to illustrate. Certainly the judge was not telling the jury that he believed the deputy sheriff's testimony. This assignment of error is without merit.

The volume of criminal appeals today threatens the judicial machinery. Every meritless appeal and every retrial adds its weight to the overload. Furthermore, since the vast majority of criminal appellants are indigent, the State pays the entire cost of most such appeals. Thus, it is the taxpayer who is penalized when solicitors and defense counsel do not perform their duties with reference to appeals.

For the error appearing in the transcript there must be a

New trial.