#### STATE v. I. B. McLAMB and JAMES RAYNOR.

(Filed 26 June, 1935.)

1. *Criminal*Law I m — Order vacating judgment *and*ordering new trial is binding upon defendants failing to object to the order.

The valid discretionary order of the trial court vacating a judgment, setting aside the verdict and ordering a new trial, to which order defendants do not object, although present in court, is binding on defendants and is not subject to challenge by them upon the subsequent trial ordered, and evidence offered by them in support of their plea in abatement upon the subsequent trial tending to show that the order vacating the judgment was entered so that incriminating evidence of codefendants might be introduced upon such new trial, is properly excluded.

2. Criminal Law Eh: L c — During term all matters are in fieri, and court may vacate judgment although appeal had been taken.

During the term of court all matters before the court at the term are *in fieri,*and the court has the power during the term to vacate a judgment, set aside the verdict, and order a new trial, in his discretion, although an appeal had been taken by defendants from such judgment.

3. Criminal Law P c — Judgment which has been vacated by discretionary order will not support a plea of former conviction.

Where the court in its discretion has vacated a judgment and set aside the verdict and ordered a new trial, a plea of former conviction entered upon the subsequent trial ordered is properly overruled, since the former judgment having been vacated, and the verdict set aside, there is nothing to support the plea.

4. Bribery B b—

Evidence of defendants’ guilt of bribing a witness to give false testimony *held sufficient to*support the verdict of *the*jury upon which defendants were sentenced to imprisonment in the State’s Prison.

Stacy, C. J., and Bkogden, J., dissent.

Appeals by defendants from *Sinlc, J.,*at August Special Term, 1934, of ScotlaND.

No error in either appeal.

At August Special Term, 1934, of the Superior Court of Scotland County, the following bill of indictment was duly returned by the grand jury as a true bill:

“Noeth Carolina — Scotland County.

In the Superior Court, August Term:, 1934.

“The jurors for the State, upon their oaths, present that Derwood Hicks, L. A. Hodges, I. B. McLamb, and James Raynor, late of the county of Scotland, on 5 May, 1933, with force and arms, at and in the county aforesaid, being persons of evil minds and dispositions, and seeking to defeat the ends of justice in the Superior Court of Scotland *379County, by dishonest practices, in secrecy and with deceit and felonious intent to binder, obstruct, delay, and defeat justice in the Superior Court of Scotland County, among themselves, unlawfully, wilfully, fraudulently, feloniously, deceitfully, and corruptly did combine, conspire, confederate, and agree together to bribe the said L. A. Hodges and Derwood Hicks to falsely testify in the Superior Court of Scotland County in a certain case in which the State of North Carolina was plaintiff and I. B. MeLamb was defendant, with the felonious and fraudulent intent thereby to hinder, obstruct, delay, and defeat the ends of justice, and the orderly administration of the laws of the State of North Carolina, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.

“Second count: The jurors for the State, upon their oaths, do further present that Derwood Hicks, L. A. Hodges, I. B. MeLamb, and James Raynor, late of the county of Scotland, on 5 May, 1933, being persons of fraudulent minds and evil dispositions, and wickedly devising and intending to hinder, obstruct, delay, and defeat justice in the Superior Court of Scotland County, and in furtherance of an unlawful conspiracy among themselves to commit bribery and to defeat justice in the said county of Scotland, unlawfully, wilfully, feloniously, wickedly, fraudulently, and corruptly, the said James Raynor, acting for himself and as agent and attorney for the said I. B. MeLamb, L. A. Hodges, and Der-wood Hicks, did pay to the said L. A. Hodges and Derwood Hicks the sum, of $500.00 in money, currency of the United States, the same being-in denominations of twenty dollars bills, and the said L. A. Hodges and Derwood Hicks received the said $500.00 so delivered by the said James Raynor as a bribe, and the said money was delivered as aforesaid, and received as aforesaid for the purpose and in payment for false testimony by the said L. A. Hodges and Derwood Hicks on behalf of the said I. B. MeLamb in a certain case pending in the Superior Court of Scotland County, wherein the State of North Carolina was plaintiff and I. B. MeLamb was defendant, contrary to the form of the statutes in such cases made and provided and against the peace of the State.”

Upon their arraignment on the foregoing indictment, the defendants I. B. MeLamb and James Raynor, each for himself, entered a plea in writing as follows:

“The defendant, before pleading guilty or not guilty to the bill of indictment returned by the grand jury at the Special Term of the Superior Court of Scotland County, which convened on 20 August, 1934, in Laurinburg, North Carolina, enters the following plea in abatement:

“1. That at the March Term, 1934, of the Superior Court of Scotland County the defendant was tried, convicted, and sentenced on the following bill of indictment:

*380
      *“*'State of North Carolina — ScotlaNd County.

SUPERIOR Court, June Term:, 1933.

“ 'Tbe jurors for tbe State, upon tbeir oatbs, present that I. B. Mc-Lamb, L. A. Hodges, Derwood Hicks, and James Baynor, late of tbe county of Scotland, on 5 May, 1933, witb force and arms, at and in tbe county aforesaid, wilfully, unlawfully, feloniously, maliciously, and corruptly, did conspire and confederate together witb tbe intent and purpose to binder, obstruct, delay, and defeat tbe ends of justice and tbe orderly procedure of tbe'Superior Court of Scotland County, in an action therein pending wherein tbe State of North Carolina was plaintiff and I. B. McLamb, Derwood Hicks, and L. A. Hodges were defendants, and did corruptly, in furtherance and in pursuance of said conspiracy of tbe said I. B. McLamb, did offer to pay and did pay as a bribe to said Derwood Hicks and L. A. Hodges tbe sum of $500.00 in money, and in return for said money and as an acceptance of said bribe tbe said Hicks and Hodges agreed to and did falsely testify as witnesses in said case in said court on behalf of tbe said McLamb, and tbe said James Baynor, in pursuance of said unlawful conspiracy, did feloniously deliver and pay for tbe said McLamb to tbe said Hodges and Hicks tbe said sum of $500.00 in money for tbe purpose of and witb tbe intent of bribing tbe said Hodges and Hicks and witb tbe further intent of hindering, delaying, obstructing, and defeating tbe orderly procedure of justice in said court, against tbe form of tbe statute in such case made and provided and against tbe peace and dignity of tbe State.’

''2. That from tbe judgment upon tbe verdict therein tbe defendant appealed to tbe Supreme Court of North Carolina; that entry of appeal was made and appearance bond was fixed by tbe court; that tbe said appearance bond was duly executed and filed witb tbe clerk and said defendant was discharged from custody; that tbe appeal of tbe defendant from said judgment was perfected, and thereafter a statement of tbe case on appeal was duly served on tbe solicitor for tbe State of tbe Thirteenth Judicial District, as required by law, and tbe same is now pending in tbe Supreme Court.

“3. That after tbe said appeal bad been entered tbe court, of its own motion, ordered that tbe judgment be vacated and that the verdict of tbe jury be set aside and that a new trial be bad.

“4. That tbe court was without power to vacate tbe said judgment and set aside tbe said verdict after appeal from tbe said judgment, and to direct a new trial for *that*said appeal stopped all further proceedings in tbe Superior Court, and tbe defendant objects and excepts to any further proceedings in said court.

*381
      *“5.*That tbe bill of indictment to which the defendant now pleads charges the same crimes- and is based upon the same fact.s, conditions, and circumstances as the said bill of indictment upon which the defendant was tried, convicted, and sentenced at the March Term, 1934, of the Superior Court of Scotland County.

“6. That the defendant now pleads to the bill of indictment returned by the grand jury at the Special Term, 1934, of the Superior Court of Scotland County, former jeopardy, trial, conviction, and sentence at the March Term, 1934, of the Superior Court of Scotland County, upon the same or a similar bill of indictment, based upon the same facts, conditions, and circumstances.”

The record of the trial at March Term, 1934, of the Superior Court of Scotland County of the defendants in this action on the indictment referred to and made a part of said plea was submitted to the court for its inspection. This record shows that upon their arraignment on said indictment, the defendants I. B. McLamb and James Eaynor each entered a plea of not guilty; that the jury duly returned a verdict of guilty as to each defendant; that on said verdicts there were judgments that each defendant be confined in the State’s Prison at Ealeigh, N. 0., for a term of not less than five or more than seven years, and that he be assigned to work on the highways of the State, as provided by law; that upon the coming in of the verdicts, each defendant moved that the verdict against him be set aside and that a new trial be ordered, for errors assigned or to be assigned in the trial, and that each defendant excepted to the refusal of the court to allow his motion; and that each defendant excepted to the judgment against him, and gave notice in open court of his appeal to the Supreme Court. After such notice, the court adjudged that an appeal bond in the sum of $50.00 and an appearance bond in the sum of $3,000 for each defendant was sufficient. These bonds were given by each defendant, and both defendants were thereupon discharged from custody, during the pendency of his appeal to the Supreme Court.

The record further shows that on a subsequent day during said March Term, 1934, after notice to each of said defendants, in their presence and in the presence of their counsel, the court, in its discretion and of its own motion, ordered that the judgment against each of said defendants be and the same was vacated; that the verdict' of guilty as to each of said defendants be and the same was set aside; and that a new trial be had as to each of said defendants on said indictment at the next term of the court. Each defendant was required by the court to give and did give a bond for his appearance at the next term of the court, the defendant I. B. McLamb in the sum of $7,000, and the defendant James Eaynor in the sum of $6,000. Neither of the defendants excepted *382to or appealed from said order. Both defendants, upon giving tbe said appearance bonds, were discharged from further attendance upon said term of court.

In support of their several pleas in abatement and of former jeopardy, the defendants offered to introduce evidence tending to show that at March Term, 1934, of the Superior Court of Scotland County, L. A. Hodges and Derwood Hicks were tried together with the defendants on the indictment referred to and made a part of the several pleas, and that both the said L. A. Hodges and the said Derwood Hicks, upon their arraignment on said indictment, entered pleas of not guilty; that both the said L. A. Hodges and the said Derwood Hicks were convicted by the jury at said trial, and were sentenced by the court to imprisonment in the State’s Prison, at Raleigh, N. 0., each for a term of not less than five or more than seven years; that after they were convicted and sentenced at said term, and while they were in the custody of the sheriff of Scotland County, awaiting their transfer to the State’s Prison, both the said L. A. Hodges and the said Derwood Hicks sought a conference with the judge who had presided at said trial, and that said conference was granted by the judge; and that at said conference the said L. A. Hodges and the said Derwood Hicks each made a statement to the judge, which was reduced to writing and signed by the said L. A. Hodges and the said Derwood Hicks. These statements were confessions by the said L. A. Hodges and the said Derwood Hicks each of his guilt of the crimes charged in said indictment, and tended to show that both the defendants in this action were also guilty of said crimes. The defendant contended that it was in consequence of these statements that the judge made the orders in the action vacating the judgments and setting aside the verdicts against these defendants, and that said orders were made in order that at a new trial of these defendants the testimony of L. A. Hodges and Derwood Hicks might be available to the State as evidence against these defendants.

The defendants further offered evidence tending to show that at the time he made the orders vacating the judgments and setting aside the verdicts against these defendants at the March Term, 1934, of the Superior Court of Scotland County, the judge made certain statements to counsel for these defendants as to his purpose in making said orders.

The court declined to hear the evidence which the defendants offered to introduce, and the defendants each excepted.

The court thereupon found from the record of the trial of the defendants at March Term, 1934, of the Superior Court of Scotland County that the defendants I. B. McLamb and James Raynor, with their counsel, were both present in court when the orders vacating the judgments *383and setting aside tbe verdicts against said defendants were entered at said March Term, and that neither of said defendants then objected or excepted to said orders, but that both defendants complied with the terms of said orders, and thereby acquiesced in the same.

On these facts, the court was of opinion that the orders entered at the March Term, 1934, of the Superior Court of Scotland County vacating the judgments and setting aside the verdicts against these defendants at said term were made in the lawful exercise of power vested in the court at said term, and accordingly denied the defendants’ pleas in abatement of this action, and of former conviction. Each of the defendants excepted to the denial of his plea.

The court then ordered that a plea of not guilty be entered as to each defendant.

At the trial evidence was offered by the State tending to show that both the defendants are guilty as charged in the indictment. The defendant I. B. McLamb offered evidence tending to contradict the evidence for the State, and to support his plea of not guilty. No evidence was offered by the defendant James Raynor.

The jury returned a verdict of guilty as to each defendant.

From judgments that the defendants be confined in the State’s Prison at Raleigh, N. C., the defendant I. B. McLamb for a term of not less than six or more than ten years, and the defendant James Raynor for a term of not less than five or more than seven years, each to be assigned to work on the State Highways, as provided by law, the defendants appealed to the Supreme Court.

*Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.*

*Ezra Parker, Canady & Wood, E. II. Gibson, and McLean & Stacy for defendant I. B. McLamb.*

*L. L. Levinson for defendant James Raynor.*

CoNNOK, J.

There was no error in the refusal of the judge presiding at the trial of this action at the August Special Term, 1934, of the Superior Court of Scotland County to hear evidence which the defendants offered to introduce in support of their pleas in abatement and of former conviction, tending to show statements made by the judge presiding at the March Term, 1934, of said court to counsel for the defendants as to his purpose in making the orders vacating the judgments and setting aside the verdicts against the defendants at said term. Nor was there error in the refusal of the judge to hear evidence tending to show that said orders were made, as contended by the defendants, in conse*384quence of statements made by L. A. Hodges and Herwood Hicks, after tbe judgments bad been rendered, and tbe verdicts returned against tbe defendants, at said March Term, 1934. Tbe record shows that tbe orders were made by tbe judge at said March Term in bis discretion, and that neither of tbe defendants, both of whom were present in court with their counsel, objected or excepted to said orders. Unless tbe orders vacating tbe judgments and setting aside tbe verdicts at tbe March Term, 1934, of tbe court are void for tbe reason that tbe judge was without power to make them, tbe said orders are binding on tbe defendants, and were not subject to challenge by tbe defendants at tbe August Special Term, 1934, of tbe court.

In *Allison v. Whittier,*101 N. C., 490, 8 S. E., 338, it- is said by *Smith, G. J.:*“It is a settled rule that tbe court retains control of cases pending at any term for its actions, and may recall, reverse, or modify anything done previously before its close. Until its termination everything is *in fieri,*and this liability to correction or revocation underlies any action it may have taken in tbe cause. It involves an exercise of discretion unrestrained by what may have been previously done, and its efficacy depends alone upon tbe legal capacity of tbe judge to do tbe act, and this alone is open to an inquiry in tbe reviewing Court. Of this litigants and counsel are required to take notice, and nothing is beyond recall until tbe session ends with tbe completion of its business. In tbe language of this Court in *Branch v. Walker,*92 N. C., 87, spoken in reference to tbe power of a presiding judge, Tbe action was not ended when tbe judgment was entered. Tbe record stood open for motions like tbe one before us, and other motions that might be made.’ ”

In *S. v. Chestnutt,*126 N. C., 1121, 36 S. E., 278, it is said by *Fair-cloth, G. J.:*“A court has power during tbe term to correct, modify, or recall an unexecuted judgment in either criminal or civil cases. *S. v. Warren,*92 N. C., 825. Tbe proceedings of a court are *in fieri*until tbe close of a term, and tbe judge may modify or vacate any order made during tbe term, and bis action is not reviewable unless it appears that be has grossly abused bis power, resulting in ojipression. This is not only tbe rule, but it is reasonable and often corrects mistakes made without full information. *We*think it common practice after verdict and judgment in criminal cases to change tbe judgment as may seem just to tbe court. *Allison v. Whittier,*101 N. C., 490; *Gwinn v. Parker,*119 N. C., 19. These authorities refer to tbe power and control of the court over its own judgments.”

Under these authorities, tbe judge presiding at tbe March Term, 1934, of tbe Superior Court of Scotland County, bad tbe power, in tbe exercise of bis discretion, to make tbe orders vacating tbe judgment and *385setting aside tbe verdicts against tbe defendants at said term, and granting tbe defendants a new trial at tbe next term of tbe court.

There was no error in tbe refusal of tbe judge at tbe August Special Term, 1934, of tbe Superior Court to sustain tbe defendants’ pleas in abatement and of former conviction at tbe March Term, 1934, of said court.

In *S. v. Lee et al.,*114 N. C., 845, 19 S. E., 375, tbe defendants were convicted at December Term, 1893, of tbe Superior Court of Forsyth County of an attempt to burn a dwelling-house. After tbe verdict and judgment, tbe defendants moved in arrest of tbe judgment. Tbe judge, in bis discretion, vacated tbe judgment, set aside tbe verdict, and ordered a new trial. A new bill of indictment was sent by tbe solicitor for tbe State to tbe grand jury, and was returned a true' bill. Tbe defendants were then tried and convicted on tbe new indictment. On their appeal to this Court from tbe judgment it was said by *Clark, C. J.:*“As to tbe plea of former conviction, tbe former verdict was against tbe defendants, and having been set aside in tbe discretion of tbe court, nothing remains to support tbe plea of former conviction.”

Tbe evidence for tbe State at tbe trial of this action tended to show that during tbe May Term, 1933, of tbe Superior Court of Scotland County, tbe defendant James Raynor delivered to L. A. Hodges and Derwood Hicks tbe sum of $500.00 as a bribe for false testimony given by them in behalf of tbe defendant I. B.- McLamb, who was tried at said term of court on an indictment charging him with feloniously receiving stolen property knowing tbe same to have been stolen; and that tbe said sum of $500.00 was delivered to tbe said James Raynor by tbe said I. B. McLamb for tbe purpose of bribing tbe said L. A. Hodges and tbe said Derwood Hicks, in pursuance of a conspiracy theretofore entered into by tbe said L. A. Hodges, Derwood Hicks, James Raynor, and I. B. McLamb. This evidence, together with evidence offered by tbe defendant I. B. McLamb tending to contradict tbe evidence of tbe State against him, was submitted to tbe jury, and was sufficient to support tbe verdict on which tbe defendants were sentenced to imprisonment in tbe State’s Prison.

We find no error in tbe trial. Tbe judgments are affirmed.

No error.

Stacy, O. J., and BrogkdeN, J., dissent.