STATE
v.
HORNE.
No. 77.
Supreme Court of North Carolina.
September 19, 1951.*666 Harry M. McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
Geo. M. Pritchard, Asheville, for defendant.
STACY, Chief Justice.
The question for decision is whether the record supports the judgment.
In its essential features, the case is strangely similar to State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79. There, the defendant contended that his plea of nolo contendere was a conditional one with the ultimate issue of his guilt or innocence to be determined by the court. The same contention is made here. There, it was conceded on appeal that such a plea was ill advised or improvident under the case of State v. Camby, 209 N.C. 50, 182 S.E. 715. The same conclusion is made here.
While the court was constrained to uphold the judgment in the Shepherd case because of the state of the record, just the opposite seems appropriate here.
The defendant was inops consilii during the trial. True, it was made to appear to the court that "the defendant had studied law and had applied to take the examination to be permitted to practice in North Carolina." Nevertheless, he was undertaking to appear for himself which affords some measure of his prudence and sagacity. The opportunity to withdraw his plea was under the shadow of a further charge of embezzlement. And the defendant seems to have been under the constant impression that his plea of nolo contendere was a conditional one. Nowhere on the record does the opposite appear. Herein lies the difference between the present case and the Shepherd case. It seems to fall under the Camby case. The law does not sanction a conditional plea of nolo contendere. The record presents this situation as the defendant views it: The defendant was under the impression that he had entered a conditional plea of nolo contendere with the court to pass upon his guilt or innocence. The judge expressed the opinion that it seemed to be more a case of embezzlement than of larceny, and offered the defendant an opportunity to withdraw his plea and later face a charge of embezzlement. The defendant was justified in believing that under his conditional plea the judge would acquit him of the charge of larceny. He therefore chose to let it stand. He evidently acted under a misapprehension.
The State, on the other hand, says that even from the defendant's own conception of the record he simply "took a chance and lost." Stamey v. Southern R. Co., 208 N. C. 668, 182 S.E. 130; Weston v. Southern R. Co., 194 N.C. 210, 139 S.E. 237. Maybe so, and maybe not. He certainly had a different understanding of what was going on. At least, he was guessing at its meaning.
We think the case is controlled by what was said in State v. Gooding, 194 N.C. 271, 139 S.E. 436. Also obliquely pertinent is the case of State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9. The matters involvedthe enforcement of the criminal law and the liberty of the citizenare worthy of exactitude and clear understanding. State v. *667 Jones, 227 N.C. 47, 40 S.E.2d 458; Ex parte Parker, 225 N.C. 369, 35 S.E.2d 169.
Error and remanded.
This opinion was written in accordance with the Court's decision and filed by order of the Court after Chief Justice STACY'S death.
VALENTINE, J., took no part in the consideration or decision of this case.