Appeal by the State of North Carolina from Godwin, Judge. Order signed 6 March 1981 in Superior Court, Wake County. Heard in the Court of Appeals 18 November 1981.
Martin (Harry C.), Judge. Judges Arnold and Wells concur.
This appeal presents three questions for review:
1. Can the state appeal from the actions taken by the district court?
2. Did the district court err in setting aside the verdicts of guilty?
3. Did the district court err in entering the verdicts of not guilty?
State's Right To Appellate Review
It is true that the state cannot appeal from the district court to the superior court upon a verdict of not guilty in a misdemeanor cae. State v. Harrell, 279 N.C. 464, 183 S.E.2d 638 (1971); N.C. Gen. Stat. § 15A-1432 (1978). Here, however, we are not concerned with a simple case of the court entering a verdict of not guilty and the state then attempting to appeal. In this case the court entered verdicts of guilty. The court then continued prayer for judgment until 15 January 1981, a period of some five months. At that time, the court set aside the guilty verdicts and entered verdicts of not guilty. These uncontroverted facts raise questions as to the lawfulness of the trial court's actions in setting aside the verdicts and in entering the verdicts of not guilty. If the not guilty verdicts were unlawful, they would be void as a matter of law.
Although the state cannot appeal from a verdict of not guilty, it may seek a writ of mandamus to compel a trial court to set aside action taken in excess of its authority. N.C.R. App. P. 22(a); N.C. Gen. Stat. § 7A-32(c) (1981); 8 Strong's N.C. Index 3d Mandamus § 1 (1977). "An action for a writ of mandamus lies only where the plaintiff shows a clear legal right to the action demanded and has no other adequate remedy." Snow v. Board of Architecture, 273 N.C. 559, 570, 160 S.E.2d 719, 727 (1968); State ex rel. Haas v. Schwabe, 276 Or. 853, 556 P. 2d 1366 (1976). We treat
the appeal to this Court as a petition for writ of mandamus pursuant to N.C.G.S. 7A-32(c) and App. R. 22, and review the merits of the issues presented by the actions of the district court judge.
Did The District Court Err In Setting Aside The Verdicts Of Guilty?
In the trial of misdemeanor cases the district court sits as the trier of the facts. No jury is employed. N.C. Gen. Stat. § 7A-196(b) (1981). The district court has exclusive original jurisdiction of all criminal offenses below the grade of felony. N.C. Gen. Stat. § 7A-272(a) (1981). The effect of a verdict of guilty by the district court in the trial of a misdemeanor is tantamount to a verdict of guilty returned by a jury. After a jury verdict has been rendered and received by the court and the jury discharged, the jurors will not be allowed to attack or overthrow their verdict. State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941 ...