State v. Burnett, 174 N.C. 796 (1917)

Sept. 26, 1917 · Supreme Court of North Carolina
174 N.C. 796


(Filed 26 September, 1917.)

Criminal Law — Pleas—Nolo Contendere — Admissions — Sentence — Subsequent Term.

The plea of “nolo contendere” is in effect a plea of guilty so far as to permit the imposition of the sentence prescribed by the law, and where prayer for judgment has been continued upon payment of cost, it may be imposed by the court at a subsequent term, after due notice to the defendant.

MotioN for judgment, heard before Allen, Jat August Term, 1917, of WAYNE.

The case was brought forward on motion of solicitor, and motion for judgment renewed, the defendant being present and also represented by counsel. The court sentenced the defendant to twelve months confinement in the jail of Wayne County. The defendant excepts and appeals.

Attorney-General Manning and Assistant Attorney-General Sykes for plaintiff.

J. L. Barham for defendant.

Beowjn, J.

At the May, 1917, Term of the Superior Court of Wayne County the defendant was indicted for conducting a bawdy-house. The defendant entered a plea of nolo contendere, and the prayer for judgment was continued upon payment of costs. At the August, 1917, Term of the said court, on motion of the solicitor, the case was brought for*797ward and the motion for judgment renewed, the defendant being present and represented by counsel, wbo excepted to the motions. Tbe exception was overruled, and after bearing the evidence, the court found as a fact that, before and after the plea of nolo contendere, the defendant bad been guilty of continuously keeping a bawdy-bouse at the same place and practically in the same manner as before the submission of the plea, and that she bears a bad reputation in that respect, and also for selling whiskey.

It is contended tbat the effect of the plea of nolo contendere when accepted by the court precludes any further sentence, except such as is imposed at the time the plea is accepted, and tbat the payment of costs was the punishment inflicted in this case.

We are unable to agree with .the learned counsel for tbe defendant. A plea of nolo contendere, which is still allowed in some courts, is regarded by some writers as a guasi-confession of guilt. Whether tbat be true or not, it is equivalent to a plea of guilty in so far as it gives tbe court tbe power to punish. It seems to be universally held tbat when tbe plea is accepted by tbe court, sentence is imposed as upon a plea of guilty. Com. v. Ingersoll, 145 Mass., 381; 12 Cyc., 354.

Tbe only advantage in a plea of nolo contendere gained by tbe defendant is tbat it gives him tbe advantage of not being estopped to deny bis guilt in civil action based upon tbe same facts. Upon a plea of guilty entered of record, tbe defendant would be estopped to deny bis guilt if sued in a civil proceeding. Com. v. Horton, 9 Pick., Mass., 206; 12 Cyc., 354.

Speaking of this plea, • tbe Supreme Court of Massachusetts says: “Tbe plea of nolo contendere is an implied confession of tbe offense charged, and tbe judgment of conviction follows tbat plea as well as tbe plea of guilty, and it is not necessary tbat tbe court should judge tbat tbe party was guilty, for tbat follows by necessary legal- inference from tbe implied confession.” S. v. Herlihy, 102 Me., 310.

Tbe Pennsylvania Supreme Court says: “Tbe plea of nolo contendere is a mild form of pleading guilty. ... It has tbe same effect as a plea of guilty so far as concerns tbe proceedings upon the indictment.” Buck v. Com., 107 Pa., 486.

So we see upon tbe authorities tbat tbe court bad power notwithstanding tbe acceptance of tbe plea to impose tbe sentence fixed by law. The judgment of tbe court was not suspended; but even if it bad been, there are circumstances under which a court may pronounce judgment in such cases. Tbe judgment in this case was continued upon payment of tbe costs, which plainly gave to tbe solicitor tbe right to pray judgment at any time. Of course, notice should be given and tbe defendant allowed a bearing, as was done in this case.