The Petition for Writ of Certiorari was filed in this Court on 19 April 1968. The Attorney General filed Answer thereto on 2 May 1968, and the Petition was first considered by this Court on 6 May 1968. Because of the content of the Petition, on 8 May 1968, we directed counsel for defendant-petitioner to file additional record. The additional record was filed by counsel on 18 June 1968, and we allowed certiorari on 24 June 1968. The case was set for argument during the first week of the Fall Session 1968 (the week of 19 August 1968).
[1, 2] It is manifest that the jury returned a verdict of not guilty upon the offense of non-felonious breaking and entering when first queried by the clerk. The additional words “[w]e find him guilty of aiding and abetting” are not a part Of the legal verdict on the offense being inquired of, and will be treated as mere surplusage. State v. Rhinehart, 267 N.C. 470, 148 S.E. 2d 651. These additional words were so treated by the trial court because the clerk immediately inquired again as to the verdict on the offense of non-felonious breaking and entering, and the foreman of the jury replied, not guilty. Certainly after this second inquiry, it is clear that the jury had returned a verdict of not guilty of the offense of non-felonious breaking and entering, and it should have been so recorded. A verdict is a substantial right, and whenever the verdict is complete, sensible and responsive to the bill of indictment, it must be accepted by the court. 3 Strong, N. C. Index 2d, Criminal Law, § 126, p. 41.
[3] The further voluntary statement by the foreman of the jury, when reading from a slip of paper in his, hand, did not constitute a sensible or responsive verdict, and the trial judge correctly required the jury to deliberate again upon its verdict. However, under the proceedings up to that point, the further jury consideration should have been restricted to a determination of the defendant’s guilt or innocence of an attempt to commit a non-felonious breaking and entering.
[4] When the jury returned the second time the clerk made the proper inquiry, but the trial judge erroneously directed that the inquiry should be made as to, its verdict upon the offense of non-felonious breaking and entering. It appears that this was an inadvertence on the part of the trial judge, nevertheless it constituted error. The jury having already rendered its verdict of not guilty of this offense in a clear, sensible and responsive fashion, it could not thereafter change that verdict to guilty. State v. Hamilton, 250 N.C. 85, 108 S.E. 2d 46. It follows that the trial court was without ju*232risdiction to enter judgment upon the purported verdict as announced after redeliberation.
[5] The petition which was heard by Judge Snepp was entitled “Application for Writ of Habeas Corpus,” however the allegations of the petition attack the judgment upon grounds of error in recording the verdict of the jury. The alleged error in recording the verdict is established by the Record on Appeal before us, to- which the Solicitor attached his acceptance of service without objection or exception. The transcript of the talcing of the verdict, as set out in our statement of facts, was introduced at the hearing before Judge Snepp after identification by the Assistant Clerk of Superior Court, and the Assistant Clerk also testified from her own knowledge that the jury.first returned a verdict of not guilty of the offense of non-felonious breaking and entering. It seems clear to us that Judge Snepp considered the application and the hearing as a strict habeas corpus proceeding under G.S. 17-3, et seq. In so doing Judge Snepp committed error.
It is the substance of the application, or petition, and the relief which is sought thereunder that determines its true nature, not the title appended thereto by the petitioner. The application, or petition, should have been considered, and the hearing conducted, under the provisions of G.S. 15-217, et seq.
The Attorney General concedes that he can find no distinction between this case and the rationale of State v. Rhinehart, supra; State v. Gatlin, 241 N.C. 175, 84 S.E. 2d 880; and State v. Hamilton, supra.
The Order of Judge Snepp, entered 23 February 1968 is reversed, and this cause is remanded to the Superior Court of Gaston County to the end that the presiding judge (1) strike the verdict of guilty of non-felonious breaking and entering, (2) record the verdict of not guilty, and (3) vacate the judgment by Froneberger, J., entered during the second week of the 9 October 1967 Session.
In view of the delay in getting this matter before this Court after the hearing on 23 February 1968, this Court upon its own motion has this day caused a Writ of Habeas Corpus to issue to the Director of the Department of Correction directing him, or his authorized agent, to have the defendant before the presiding judge of Gaston County Superior Court at ten o’clock a.m., on Monday, 26 August 1968, to the end that said presiding judge may enter an order for defendant’s immediate release from confinement under the commitment issued from the. Superior Court of Gaston County- in case number 67-477 on 20 October 1967, during the second week of *233the 9 October 1967 Session. After inquiry into whether there is other authority for restraining the defendant of his liberty, the presiding judge shall enter an appropriate order of discharge from or remand to custody.
The Clerk of this Court is directed to forthwith certify a copy of this opinion to the Clerk of Superior Court of Gaston County to the end that the matter be immediately brought to the attention of the presiding judge for his compliance with the terms of the foregoing paragraphs.
Reversed and remanded.
Britt and Parrer, JJ., concur.