Did the court err in denying defendant’s motion to set aside the judgment rendered against bim on the ground tbat the plea of nolo contendere entered by bim was conditional, and so accepted by the court ? Tbis is the pivotal question, on wbicb decision bere turns. And in the light of well settled principles of law, applied to the facts disclosed by the record and case on appeal now before the court, the question must be answered in the negative.
The plea of nolo contendere bas been interposed and accepted in numerous cases in the courts of North Carolina. the latest appeal in such case is S. v. Cooper, ante, 241. There the principle bas been re-stated in opinion by Brvin, J., in tbis manner: “the defendant’s plea of nolo contendere constitutes a formal declaration on bis part tbat be would not contend with the State in respect to the charge, and was tantamount to a plea of guilty for the purposes of tbis particular criminal action. Consequently, the presiding judge acquired full power to pronounce judgment against the defendant for the crime charged in the indictment . . . when be allowed the solicitor to accept the plea tendered by the defendant.” Applicable cases, including S. v. Thomas, 236 N.C. 196, 72 S.E. 2d 525, are there cited, and need not be re-listed bere.
But a plea of nolo contendere cannot be entered by a defendant as a matter of right. It is pleadable only by leave of tbe court. “Its acceptance by tbe court is entirely a matter of grace.” See S. v. Thomas, supra, and cases cited.
In tbe light of these principles defendant contends tbat on tbe face of tbe record in tbe instant case, it appears tbat tbe trial court did not accept bis plea, but proceeded to bear evidence and to pass upon tbe question of bis guilt or innocence. True, tbe record does say tbat “upon bearing tbe evidence tbe court adjudged tbe defendant guilty.” But in the light of tbe facts as found by tbe court, appearing in tbe record, as above set forth, it means no more than tbat, after defendant tendered tbe plea of nolo contendere, tbe court beard evidence before determining tbat tbe plea be accepted. No rule of procedure is prescribed by law governing tbe judge in making sucb determination.
Hence, the judgment from which appeal is taken will be