{ "id": 8623843, "name": "STATE v. TOM WHITLEY THOMAS", "name_abbreviation": "State v. Thomas", "decision_date": "1952-09-24", "docket_number": "", "first_page": "196", "last_page": "202", "citations": [ { "type": "official", "cite": "236 N.C. 196" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 S.E. 2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631990 ], "opinion_index": 0, "case_paths": [ "/nc/215/0752-01" ] }, { "cite": "167 S.E. 382", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611014 ], "opinion_index": 0, "case_paths": [ "/nc/204/0048-01" ] }, { "cite": "66 S.E. 2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618888 ], "opinion_index": 0, "case_paths": [ "/nc/234/0115-01" ] }, { "cite": "62 S.E. 2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614325 ], "opinion_index": 0, "case_paths": [ "/nc/232/0731-01" ] }, { "cite": "55 S.E. 2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631374 ], "opinion_index": 0, "case_paths": [ "/nc/230/0605-01" ] }, { "cite": "55 S.E. 2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631251 ], "opinion_index": 0, "case_paths": [ "/nc/230/0589-01" ] }, { "cite": "226 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622813 ], "opinion_index": 0, "case_paths": [ "/nc/226/0580-01" ] }, { "cite": "39 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "226 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622774 ], "opinion_index": 0, "case_paths": [ "/nc/226/0579-01" ] }, { "cite": "17 S.E. 2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11303866 ], "opinion_index": 0, "case_paths": [ "/nc/220/0416-01" ] }, { "cite": "93 S.E. 473", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 796", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255859 ], "opinion_index": 0, "case_paths": [ "/nc/174/0796-01" ] }, { "cite": "152 A.L.R. 253", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "p. 267" } ], "opinion_index": 0 }, { "cite": "56 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628330 ], "opinion_index": 0, "case_paths": [ "/nc/231/0076-01" ] }, { "cite": "66 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621353 ], "opinion_index": 0, "case_paths": [ "/nc/234/0265-01" ] }, { "cite": "62 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598133 ], "opinion_index": 0, "case_paths": [ "/nc/233/0068-01" ] }, { "cite": "34 S.E. 2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603852 ], "opinion_index": 0, "case_paths": [ "/nc/225/0213-01" ] }, { "cite": "22 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629015 ], "opinion_index": 0, "case_paths": [ "/nc/222/0137-01" ] }, { "cite": "180 S.E. 84", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601522 ], "opinion_index": 0, "case_paths": [ "/nc/208/0241-01" ] }, { "cite": "83 S.E. 630", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658022 ], "opinion_index": 0, "case_paths": [ "/nc/168/0150-01" ] } ], "analysis": { "cardinality": 724, "char_count": 18341, "ocr_confidence": 0.499, "pagerank": { "raw": 5.781410298889632e-07, "percentile": 0.950962585077354 }, "sha256": "6bfab786504cb021ba9d90a349659b574e7bbe670b7a375df2d4b188ef7c089b", "simhash": "1:dfa09be81ec68ebf", "word_count": 3175 }, "last_updated": "2023-07-14T20:03:47.341722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. TOM WHITLEY THOMAS." ], "opinions": [ { "text": "WinboeNE, J.\nDefendant, appellant, here presents for consideration and decision three assignments of error based upon exceptions duly taken on the hearing before the judge of Superior Court.\nThe exceptions are: Number 1, to the refusal of the judge of Superior Court, upon hearing on the record certified from the recorder\u2019s court of Edgecombe County, to hear testimony touching upon (a) the circumstances and facts surrounding defendant\u2019s having operated his motor vehicle after his license had been revoked, as set out in the record, and (b) the reasonableness of the punishment as bearing upon the question whether or not the court in its discretion should continue defendant on probation;\nNumber 2, to the dismissal of defendant\u2019s petition for writ of certiorari, and remanding the case for execution of sentence; and'\nNumber 3, to the signing of the judgment from which this appeal is taken.\nAssignment of Error No. 1 is untenable for that when a criminal action has been brought from an inferior court to the Superior Court by means of a writ of certiorari, the Superior Court acts only as a court of review, and in all ordinary instances must act on the facts as they appear of record and can only revise the proceedings as to regularity or on questions of law or legal inference. S. v. Tripp, 168 N.C. 150, 83 S.E. 630; S. v. Rhodes, 208 N.C. 241, 180 S.E. 84; S. v. King, 222 N.C. 137, 22 S.E. 2d 241; S. v. Miller, 225 N.C. 213, 34 S.E. 2d 143; S. v. Smith, 233 N.C. 68, 62 S.E. 2d 495; S. v. Stallings, 234 N.C. 265, 66 S.E. 2d 822.\nIt is pertinent to note that the provisions of Chap. 1038 of 1951 Session Laws of North Carolina, providing that in all cases where a suspended sentence theretofore entered in a court inferior to the Superior Court is invoked by the court inferior to the Superior Court, the defendant shall have the right to appeal therefrom to the Superior Court, and, upon such appeal, the matter shall be heard de novo, but only upon the issue of whether or not there has been a violation of the terms of the suspended sentence, by express proviso, do not apply to a person under the supervision of the Probation Commission, as is the present defendant. Why the exception is made, is not before us.\nHowever, the exceptions on which assignments of error Numbers 2 and 3 are based are well taken. These raise the question as to whether error in matters of law appear upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E. 2d 15.\nThe judge of Superior Court was authorized to consider the facts as they appear of record, and could only revise the proceedings as to regularity, or on questions of law or legal inference. 8. v. Tripp, supra. But it appears here that the judge of Superior Court made findings of fact which were taken into consideration in his decision, and that his decision is predicated in part upon the fact that defendant did not appeal from the judgment revoking the probation judgment, and that he did not take any action with respect to the same until the filing of application for writ of certiorari. As above held, right of appeal was not open to defendant. His only redress was by petition for writ of certiorari. 8. v. King, supra.\nMoreover, it is apparent from the record that all through the proceeding there is confusion as to the effect of a plea of nolo contendere in the case in which it was entered, and its consequences outside the particular case. The text writers and annotators, interpreting decisions of the courts of the land, say (1) that \u201call the decisions are in agreement that the plea of nolo contendere cannot be entered by a defendant as a matter of right, but is pleadable only by leave of the court,\u201d \u2014 that \u201cits acceptance by the court is entirely a matter of grace.\u201d Ann. 152 A.L.R. 253, at p. 267, citing among other cases S. v. Burnett, 174 N.C. 796, 93 S.E. 473; S. v. Parker, 220 N.C. 416, 17 S.E. 2d 475; (2) that in all decisions in point the legal effect of the plea of nolo contendere, after it has been, offered by the defendant and accepted by the court, in respect to the case in which it is interposed, is that it becomes an implied confession of guilt, and for the purposes of the case only, equivalent to a plea of guilty. Ann. 152 A.L.E. 253, at 273; and (3) that as to consequences of plea outside the case, \u201cthe fundamental rule, as unanimously accepted by all the courts as the rule expressing the effect of the plea in the case, is that while the plea of nolo contendere may be followed by a sentence, it does not establish the fact of guilt for any other purpose than that of the case to which it applies.\u201d That \u201cthe difference between it and a plea of guilty, therefore, simply is that while the latter is a confession that binds the defendant in other proceedings, the former has no effect beyond the particular case.\u201d That \u201cconsequently it cannot be used against the defendant as an admission in any civil suit for the same act.\u201d And, that \u201cthe rule seems to be the same in case of a later criminal proceeding.\u201d Ann. 152 A.L.E. 253, at 280. See also 14 Am. Jur. 954.\nThe plea of nolo contendere has been interposed and accepted in numerous cases in North Carolina, among which are these: S. v. Burnett, supra; S. v. Parker, supra; S. v. Ayers, 226 N.C. 579, 39 S.E. 2d 607; S. v. Beasley, 226 N.C. 580, 39 S.E. 2d 607; S. v. Stansbury, 230 N.C. 589, 55 S.E. 2d 185; S. v. Shepherd, 230 N.C. 605, 55 S.E. 2d 79; S. v. Jamieson, 232 N.C. 731, 62 S.E. 2d 52; S. v. Horne, 234 N.C. 115, 66 S.E. 2d 665.\nIn 8. v. Burnett, supra, it is said: \u201cA plea of nolo contendere ... is equivalent to a plea of guilty in so far as it gives the court the power to punish . . . The only advantage in a plea of nolo contendere gained by the defendant is that it gives him the advantage of not being estopped to deny his guilt in civil action based upon the same facts. Upon a plea of guilty entered of record, the defendant would be estopped to deny his guilt if sued in a civil proceeding.\u201d\nAnd in In re Stiers, 204 N.C. 48, 167 S.E. 382, this Court held \u201cthat a plea of nolo contendere does not amount to a conviction or confession in open court of a felony,\u201d . . . and \u201cthat as a disbarment proceeding is of a civil nature, the mere introduction of a certified copy of an indictment, and judgment thereon, based upon a plea of nolo contendere, is not sufficient to deprive an attorney of his license, \u2014 certainly when he is present in court, denying his guilt and strenuously contending that his fault, if any, rested upon a technical violation of a statute.\u201d\nAnd in S. v. Stansbury, supra, in opinion by Ervin, J., it is said: \u201cThe defendant\u2019s plea of nolo contendere . . . was tantamount to a plea of guilty for the purposes of this particular criminal action.\u201d\nIn the light of these principles, since this Court has recognized the ruling that a plea of nolo contendere cannot be used against a defendant as an admission in a civil action and in an action of the nature of a civil action, In re Stiers, supra, it seems reasonable and logical that such plea ought not to be used against the defendant as an admission in any other criminal action. Hence we hold that a plea of nolo contendere entered by defendant in the recorder\u2019s court, at Greenville, N. C., to the charge of operating his automobile after his license had been suspended cannot be used against him as an admission on the question as to whether or not he has violated the condition of the judgment suspended by the recorder\u2019s court of Edgecombe County. Proof of such violation, if any, must be made independently of such plea, or of evidence or admission by defendant, that such plea was made.\nMoreover, the law does not sanction a conditional plea of nolo con-tendere. S. v. Home, supra. Hence if defendant entered a plea of nolo contendere in the recorder\u2019s court at Greenville, N. C., to the charge of operating a motor vehicle after his license had been suspended, the basis on which it is contended he violated the conditions of his probation judgment, and it was accepted by the court, the recorder may not find him guilty of the charge. Thus the super-added clause \u201cand was found guilty by the court\u201d would be a misapprehension of the effect of a plea of nolo contendere in a criminal action, and could not be upheld. See McGill v. Lumberton, 215 N.C. 752, 3 S.E. 2d 324, and numerous other cases.\nThis is so, whether the misapprehension originated with the recorder of the Greenville court or with the probation officer. Further, it may be observed here that the suspended sentence should not be invoked on the unverified report of the probation officer.\n\u201cThe matters involved \u2014 the enforcement of the criminal law and the liberty of the citizen \u2014 are worthy of exactitude and clear understanding,\u201d declared the late Chief Justice Stacy in S. v. IIorne, supra, in opinion written in accordance with the Court\u2019s decision and filed by order of the Court after his death. So say we all now on this appeal.\nFor errors pointed out, the judgment of the Superior Court from which this appeal is taken, and the judgment of the recorder\u2019s court of Edge-combe County invoking the suspended sentence will be set aside, and the cause remanded to the Superior Court of Edgecombe County to be by it remanded to the recorder\u2019s court of said county for hearing in accordance with law and justice, on the question of fact as to whether defendant has violated the condition on which the sentence was suspended, \u2014 at which hearing defendant shall have an opportunity to be heard, and to offer evidence.\nError and remanded.", "type": "majority", "author": "WinboeNE, J." } ], "attorneys": [ "Attorney-General McMullan, Assistant Attorney-General Bruton, and O. G. Powell, Member of Staff, for the State.", "Cameron S. Weeks and T. Chandler Muse for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. TOM WHITLEY THOMAS.\n(Filed 24 September, 1952.)\n1. Criminal Law \u00a7\u00a7 14, 76a\u2014\nIn a bearing upon a writ of certiorari to a recorder\u2019s court, the Superior Court is limited to questions of law or legal inference, and must act on tbe facts as they appear of record, and therefore on such hearing, challenging an order of the recorder\u2019s court executing a suspended judgment, defendant is not entitled to offer evidence either in regard to the facts and circumstances relating to the violation of the conditions of the suspended judgment or to whether the court should exercise its discretion and continue defendant on probation.\n2. Criminal Law \u00a7 62f\u2014\nThe right to appeal from order executing a suspended judgment does not apply to a person under the supervision of the Probation Commission. Chap. 1038, Session Laws of 1951.\n3. Criminal Law \u00a7 17c\u2014\nA plea of nolo contendere may be entered only by leave of court, and such plea establishes the fact of guilt only for the purpose of punishment in the particular case in which it is entered, and cannot be used against the defendant as an admission in a subsequent civil action or a subsequent criminal proceeding. A finding by the court upon such plea that defendant is guilty is surplusage.\n4. Criminal Law \u00a7 62f\u2014\nA suspended judgment cannot be put into execution solely on the basis of defendant\u2019s plea of nolo contendere in a subsequent legal action, even though the fact of guilt in such action would be a violation of the eondi-tions of suspension, but tlie solicitor must prove the fact of guilt by \u2022evidence aliunde.\n5. Same\u2014\nA suspended sentence should not be invoked on the unverified report of the Probation Officer.\nAppeal by defendant from Frizzelle, J., at July Term, 1952, of Edgecombe.\nCriminal prosecution upon a warrant, No. 19246, issued out of the recorder\u2019s court of Edgecombe County, North Carolina, charging that defendant did unlawfully and willfully (1) transport, and (2) have in his possession six gallons of nontax-paid whiskey against the form of the statute, etc., heard in Superior Court of Edgecombe County upon defendant\u2019s petition for certiorari to bring up for review, and for reversal of judgment invoking a suspended sentence of imprisonment entered by said recorder\u2019s court.\nIn this connection, Tom Whitley Thomas applied to the judge holding the courts of the Second Judicial District, by verified petition,- in which, after reciting the fact of a suspended judgment, on conditions stated, and the revocation thereof, set forth the following: \u201cThat no right of appeal is provided by statute in such cases, and that, as your petitioner is informed and verily believes, the said judgment revoking said probation, so in form rendered, was and is improper, irregular and erroneous for the following reasons, to wit: Your petitioner has not violated the terms or conditions of probation warranting or justifying revocation; and, further, the punishment invoked as a result of the revocation of probation is unduly harsh, cruel and unusual in violation of the Constitution.\u201d Thereupon petitioner prayed that a writ of certiorari issue.\nAnd pursuant to an order of the judge aforesaid, the records of the recorder\u2019s court were certified 2 June, 1952, and as so certified, showed in the main the following: 1. At the 2 October, 1951, term of the recorder\u2019s court aforesaid the defendant entered a plea of guilty to the crimes of transporting, and possession of nontax-paid whiskey. Thereupon the court sentenced defendant to jail, to be assigned to work under the supervision of the State Highway and Public Works Commission of North Carolina for a period of two years. This sentence was suspended and defendant was placed on probation for a period of five years under the supervision of the North Carolina Probation Commission and its oificers, subject to the provisions of the laws of this State and the rules and orders of said commission and its officers with leave that execution might be prayed at any time during the period of probation.\nThe conditions of probation, among others, are these: That defendant pay $2,000.00 fine and $174.95 costs; that his car be confiscated and ordered sold according to law; that whiskey be confiscated and destroyed in such maimer as directed by the Probation Commission; and that defendant \u201cviolate no penal law of any State or the Federal Government and be of general good behavior.\u201d The fine and costs were paid \u201c10/9/51.\u201d\n2. Thereafter on 11 March, 1952, the Probation Officer made \u201cbis official report on the conduct of the above named petitioner,\u201d as required by Section 4 of Chapter 132, Public Laws 1937, in which petition, after reciting the \u00bfjudgment, and terms of the judgment suspended as above recited, set forth: \u201cNow, therefore, the above named probationer has violated conditions of bis probation judgment in that be entered a plea of nolo-contendere in recorder\u2019s court, Greenville, North Carolina, February 12, 1952, to a charge of operating a motor vehicle after bis license bad been suspended, and was found guilty by the court; and given a 90-day sentence, which sentence was suspended upon the condition that the defendant pay a fine of $200 and the costs; and upon the recommendation that bis license be suspended for two additional years.\n\u201cNow, therefore, your probation officer prays the court to make suitable disposition in this case.\u201d (Note: This report and petition does not appear to have been verified.)\n3. Thereupon, on 11 March, 1952,. the judge of the recorder\u2019s court of Edgecombe County entered an order in which it is recited that \u201cdefendant appeared in open court to answer the charge of violating the conditions of a probation judgment imposed upon him at the October 2, 1951 term,\u201d etc., and that,- \u201cit now, therefore, appears to the court, and the court finds as a fact, from a written report submitted by the probation officer, and the defendant\u2019s- own admission in open court that the above named defendant, Tom Whitley Thomas, has violated conditions of bis probation judgment, in that be entered a plea of nolo contendere in recorder\u2019s court, Greenville, North Carolina, February 12, 1952, to a charge of operating a motor vehicle after bis license bad been suspended and was found guilty by the court and given a 90-day sentence, which sentence was suspended up on-the-condition that the defendant pay a fine of $200.00 and the costs; and upon the recommendation that bis license be suspended for two additional years.\u201d And thereupon the judge of recorder\u2019s court adjudged \u201cthat probation be and the same is hereby revoked and the two-year sentence imposed in case No. 19246 and suspended, is hereby ordered put into effect ...\u201d\nThe case on appeal before this Court discloses that upon the call of the case for trial, apparently in Superior Court, defendant, the petitioner, announced to the court that be bad some 15 or 20 witnesses which be desired to place upon the stand to testify in bis behalf, which testimony would touch upon the circumstances and facts surrounding bis having operated bis motor vehicle after his license was revoked as set out in the record, and touching upon the reasonableness of the punishment and as bearing upon the question of whether or not the court in its discretion should continue the defendant on probation. Whereupon the solicitor objected to any testimony whatever being offered. The objection was sustained and defendant excepted. Exception No. 1.\nWhereupon the solicitor moved the court to dismiss the petition and deny the writ and remand the case for execution of sentence. The motion was granted, and defendant excepted. Exception No. 2.\nThe presiding judge, after reviewing the record as so certified, and reciting that \u201cit further appearing that the defendant did not appeal either from the judgment sentencing him to the roads, suspended' upon payment of the fine, or from the judgment revoking the probation judgment, and took no action with respect to the same, until the filing of application for writ of certiorari before the judge holding the courts of the Second Judicial District on the 20th day of March 1952, the court is of opinion that upon the admitted facts and these findings the defendant is not entitled to certiorari\u201d ordered that defendant\u2019s motion for cer-tiorari be denied, and that the cause be remanded to the recorder\u2019s court of Edgecombe County for the execution of the judgment theretofore entered in that court on 11th day of March, 1952.\nDefendant excepted, Exception No. 3, and appeals therefrom to the Supreme Court, and assigns error.\nAttorney-General McMullan, Assistant Attorney-General Bruton, and O. G. Powell, Member of Staff, for the State.\nCameron S. Weeks and T. Chandler Muse for defendant, appellant." }, "file_name": "0196-01", "first_page_order": 248, "last_page_order": 254 }