State v. Cassada

170 S.E.2d 575, 6 N.C. App. 629, 1969 N.C. App. LEXIS 1250

• Court: Court of Appeals of North Carolina
• Decided: November 19, 1969
• Docket: No. 6928SC401
• Status: Published

Opinion

Campbell, J.

The defendant assigns as error the acceptance by the court of a plea of guilty to the felony of receiving stolen goods, knowing them to have been stolen, when he had not been indicted for such an offense and had not waived a bill of indictment.

“The crimes of larceny and of receiving stolen goods, knowing them to have been stolen, are separate and distinct offenses. . . .” State v. Brady, 237 N.C. 675, 75 S.E. 2d 791 (1953).

In McClure v. State, 267 N.C. 212, 148 S.E. 2d 15 (1966), Chief Justice Parker stated:

“G.S. 15-137 reads in relevant part: ‘No person shall be . . . put on trial before any court, but on indictment found by the grand jury, unless otherwise provided by law.’

‘There can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity.’ 42 C.J.S., Indictments and Informations, § 1; S. v. Albarty, 238 N.C. 130, 76 S.E. 2d 381; S. v. Strickland, 243 N.C. 100, 89 S.E. 2d 781; S. v. Morgan, 226 N.C. 414, 38 S.E, 2d 166.”

In the instant case there was no bill of indictment for the crime of receiving stolen goods and neither was there a waiver of such bill of indictment pursuant to G.S. 15-140.1.

The sentence of imprisonment of defendant imposed in the trial court is vacated as a nullity.

PARKER and Graham, JJ., concur.