#### STATE v. F. D. FITZGERALD HORNE.

(Filed 19 September, 1951.)

1. Criminal Law §§ 17c, 60b—

Where the record discloses that a defendant, appearing *in propria persona,*entered a plea of *nolo contendere*under the impression that it was a conditional plea under which the court would find the facts and determine the question of guilt, and that thereafter defendant was given opportunity to withdraw the plea only upon intimation by the court that he would be charged with another distinct offense which the evidence tended to support, *held*the record does not support sentence upon the adjudication by the court that the defendant was guilty of the offense charged.

2. Criminal Law § 17c—

The law does not sanction a conditional plea of *nolo contendere.*

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.

Appeal by defendant from *Patton, Special Judge,*April Term, 1951, of Buncombe Superior Court.

Criminal prosecution on indictment charging the defendant (1) with the larceny of a Remington-Rand typewriter, advertising list and pictures of the value of $2500, the property of Benjamin and Mary E. Dixon, and (2) with receiving same knowing it to have been stolen.

*116When asked bow be desired to plead, tbe defendant, wbo was not represented by counsel, first stated that be desired to plead not guilty, but later informed tbe solicitor that "be would enter a plea of *nolo con-tendere*and let tbe Judge bear tbe evidence and render sucb judgment as tbe facts might warrant.”

After bearing a portion of tbe evidence, tbe court observed that “tbe case appears to be more of a case of embezzlement than of larceny. Therefore, if tbe defendant chooses, I will permit him to withdraw bis plea of *nolo contendere*to tbe present bill of indictment and I will thereupon direct that bq be held and that tbe solicitor send a bill against him for embezzlement.”

Tbe defendant, after conferring with tbe solicitor, stated that be preferred.to proceed with bis plea of *nolo contendere*to tbe present bill. And after all tbe evidence was in, be again stated that be desired “bis plea of *nolo contendere*to tbe charge of larceny to stand” and made no motion to strike it out.

Tbe court, thereupon, “after bearing tbe evidence adjudged tbe defendant guilty and sentenced him to serve a term of four months” on tbe roads.

Tbe defendant, having retained counsel to represent him, duly served notice of appeal.

*Attorney-General McMullan and Assistant Attorney-General Love for the State.*

*Geo. M. Pritchard for Defendant.*

Stacy, O. J.

Tbe question for decision is whether tbe record supports tbe judgment.

In its essential features, tbe case is strangely similar to *S. v. Shepherd,*230 N.C. 605, 55 S.E. 2d 79. There, tbe defendant contended that bis plea of *nolo contendere*was a conditional one with tbe ultimate issue of bis guilt or innocence to be determined by tbe court. Tbe same contention is made here. There, it was conceded on appeal that sucb a plea was ill advised or improvident under tbe case of *S. v. Camby,*209 N.C. 50, 182 S.E. 715. Tbe same conclusion is made here.

While tbe court was constrained to uphold tbe judgment in tbe *Shepherd case*because of tbe state of tbe record, just tbe opposite seems appropriate here.

Tbe defendant was *inops consilii*during tbe trial. True, it was made to appear to tbe court that “tbe defendant bad studied law and bad applied to take tbe examination to be permitted to practice in North Carolina.” Nevertheless, be was undertaking to appear for himself which affords some measure of his prudence and sagacity. Tbe opportunity to withdraw bis plea was under tbe shadow of a further charge *117of embezzlement. And the defendant seems to have heen 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 *Carnby 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. R. R.,*208 N.C. 668, 182 S.E. 130; *Weston v. Ry.,*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 *S. v. Gooding,*194 N.C. 271, 139 S.E. 436. Also obliquely pertinent is the case of *S. v. Calcutt,*219 N.C. 545, 15 S.E. 2d 9. The matters involved- — the enforcement of the criminal law and the liberty of the citizen — are worthy of exactitude and clear understanding. *S. v. Jones,*227 N.C. 47, 40 S.E. 2d 458; *In re Parker,*225 N.C. 369, 35 S.E. 2d 169.

Error and remanded.

Note: 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.