STATE of North Carolina
v.
Paul Wilfred JOHNSON.
No. 46.
Supreme Court of North Carolina.
June 6, 1978.*395 Rufus L. Edmisten, Atty. Gen., by Thomas H. Davis, Jr., Associate Atty. Gen., Raleigh, for the State of North Carolina.
Van Winkle, Buck, Wall, Starnes, Hyde & Davis, Herbert L. Hyde and G. Edison Hill, Asheville, for defendant-appellant.
HUSKINS, Justice:
We first consider defendant's assignment of error which challenges the following excerpt from the charge:
"If you find from the evidence beyond a reasonable doubt that on or about January 15, 1977, Paul Wilfred Johnson intentionally and without justification or excuse, fired a .22 caliber shot into the body of Clyde Junior Tabor with the rifle offered and received into evidence as State's Exhibit 9 thereby proximately causing Clyde Junior Tabor's death, but the State has failed to satisfy you beyond a reasonable doubt that the defendant killed with malice because of the heat of sudden passion, or while exercising the right of self defense he used excessive force, it would be your duty to return a verdict of guilty of voluntary manslaughter."
When properly analyzed, this excerpt from the charge says: (1) If, due to the State's failure to carry its burden of proof, the jury has a reasonable doubt that defendant killed his victim "with malice because of the heat of passion," defendant should be convicted of voluntary manslaughter; or (2) if the State has failed to satisfy the jury beyond a reasonable doubt that defendant used excessive force while exercising his right of self-defense, defendant should be convicted of voluntary manslaughter. The first portion of the excerpt is ambiguous and subject to various interpretations some permissible, others not. The second portion is manifestly erroneous. In view of the fact that defendant was convicted of voluntary manslaughter, a new trial is mandatory. State v. Carver, 286 N.C. 179, 209 S.E.2d 785 (1974). Compare State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969).
We are inclined to think that the confusing instruction attributed to the able trial judge was erroneously transcribed. Even so, the record imports verity and we are bound by the record as certified. Foods, Inc. v. Super Markets, 288 N.C. 213, 217 S.E.2d 566 (1975); Rogers v. Rogers, 265 N.C. 386, 144 S.E.2d 48 (1965).
One remaining assignment merits discussion at this time.
Defendant assigns as error the denial of his motion for a new trial based upon the alleged misconduct of the jury officer in commenting to the jury after it had retired to deliberate on its verdict, in substance, "that he was proud or glad that the district attorney for the State in his argument to the jury stood up for the law enforcement officers of Swain County."
While courts are zealous in protecting litigants against improper influences exerted by court officers and other persons who are strangers to the litigation, "the rule sustained by the great weight of authority is that a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby, and this is true of applications for a new trial by the accused in a criminal case as well as of applications made in civil actions. Clearly, a conversation between a juror and a third person which is of a harmless character, unrelated to the matter in issue, and not tending to influence or prejudice the jury in their verdict, will not afford cause for a new trial.. . . [A]nd if a trial is clearly fair and proper, it should not be set aside because of mere suspicion or appearance of irregularity *396 which is shown to have done no actual injury. Generally speaking, neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge." (Emphasis added.) 58 Am. Jur.2d, New Trial, § 109 (1971). This statement is quoted with approval in Stone v. Baking Co., 257 N.C. 103, 125 S.E.2d 363 (1962), and is quoted and applied to the conduct of an erring bailiff in State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968).
Ordinarily, motions for a new trial based on misconduct affecting the jury are addressed to the discretion of the trial court, and unless its rulings thereon are clearly erroneous or amount to a manifest abuse of discretion, they will not be disturbed. State v. Sneeden, supra; O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965); Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19 (1957). "The circumstances must be such as not merely to put suspicion on the verdict because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge." Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915).
We are of the opinion, however, that the remarks of the bailiff to the jurors were of such character as to require a new trial as a matter of law. The jury was sequestered and in the bailiff's charge throughout each day during court hours. The State admitted in its answer that the officer commented to some of the jurors, after the jury had received the case, that "he was proud or glad that the district attorney for the State in his argument to the jury stood up for the law enforcement officers of Swain County." The quality of the investigation made by the sheriff and his deputies, and their credibility, were contested matters and thus gave pointed significance to the comments. The improper remarks violated Judge Hasty's order that the jurors permit no one to comment to them on the trial and that the bailiff permit no person, directly or indirectly, to contact any of the jurors. The gratuitous communication by the bailiff to the jurors appears to have been calculated to result in harm to the defendant by impressing the case upon the minds of the jurors "in a different aspect than was presented by the evidence in the courtroom." We therefore are of the opinion, and so hold, that the bailiff's admitted remark constituted misconduct which was sufficiently gross and likely to cause prejudice to defendant that a new trial must be had. See Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). Compare State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968).
Procedurally speaking, the motion here could not be addressed to the trial court because Judge Hasty's judgment of imprisonment entered on 10 March 1977 was a final judgment from which defendant immediately appealed to the Court of Appeals. This appeal from the final judgment took the case out of the jurisdiction of the superior court, and, after the term expired, Judge Hasty was functus officio to consider defendant's motion for a new trial because of the alleged misconduct of the bailiff. Stone v. Baking Co., 257 N.C. 103, 125 S.E.2d 363 (1962); Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971). The Court of Appeals correctly held that Judge Hasty was without jurisdiction to hear and pass upon the motion. It erred, however, in failing to pass upon the merits of defendant's motion for a new trial. Pending the appeal and after the adjournment of the term of court at which the judgment was rendered, jurisdiction was in the Court of Appeals and defendant's motion for a new trial was properly before that court. Inasmuch as the bailiff's admitted communication to the jurors was of such character as to require a new trial as a matter of law, *397 the Court of Appeals should have ordered a new trial rather than remanding the case to the Superior Court of Swain County for a hearing and findings on the motion and discretionary determination by that court.
Defendant's remaining assignments are not likely to recur on retrial and we deem it unnecessary to discuss them.
For the reasons stated the decision of the Court of Appeals finding no error in the trial is reversed and the case is remanded to the Superior Court of Swain County for a
NEW TRIAL.