State v. Cross

219 S.E.2d 274, 27 N.C. App. 335, 1975 N.C. App. LEXIS 1839

Opinion

VAUGHN, Judge.

Any person who commits an assault or an assault and battery, (unless his conduct is covered by some other provision of law providing greater punishment), using a deadly weapon, is guilty of a misdemeanor punishable by fine, imprisonment for not more than two years, or both such fine and imprisonment. G.S. 14-33 (b) (1).

Defendant’s sole assignment of error is that the trial court, by awarding the maximum sentence provided by law, has in flicted cruel and unusual punishment on defendant, under the circumstances of this case.

As long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office. State v. Spencer, 7 N.C. App. 282, 172 S.E. 2d 280, modified on other grounds, 276 N.C. 535, 173 S.E. 2d 765.

A sentence of imprisonment which is within the limitation authorized by statute cannot be held cruel or unusual in the constitutional sense. State v. Caldwell, 269 N.C. 521, 153 S.E. 2d 34; State v. Newell, 268 N.C. 300, 150 S.E. 2d 405; State v. Garris, 265 N.C. 711, 144 S.E. 2d 901.

No error.

Judges Bkitt and Arnold concur.