State v. Foster

Supreme Court of North Carolina

State v. Foster

121 S.E.2d 553, 255 N.C. 353, 1961 N.C. LEXIS 588

DecidedSeptember 20, 1961

StatusPublished

This text of 121 S.E.2d 553 (State v. Foster) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Foster, 121 S.E.2d 553, 255 N.C. 353, 1961 N.C. LEXIS 588 (N.C. 1961).

Pincite

Opinion

PER Cukiam.

Presented here for review is the order dismissing the proceeding upon the ground the petition for review was filed more than five years after conviction. Nevertheless the Court, at the hearing, made extensive findings and concluded that the sentence on the larceny count was unlawful in that the count failed to charge a criminal offense. The Attorney General, with his usual frankness, concedes the sentence on the larceny count cannot be sustained if raised by Habeas Corpus. The prisoner, by his petition, and the State, by the Attorney General’s answer, are now before us. In this state of the record we may treat the judgment on the larceny count as challenged because it [355]*355is not grounded upon a valid indictment. The challenge must be sustained. For that reason, the judgment is arrested. The result of this decision is to strike the seven (7) to nine (9) years’ sentence, leaving the sentences for escape to begin at the end of the sentence of eight (8) to ten (10) years on the breaking and entering count.

Judgment Arrested.

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PER Cukiam.

Presented here for review is the order dismissing the proceeding upon the ground the petition for review was filed more than five years after conviction. Nevertheless the Court, at the hearing, made extensive findings and concluded that the sentence on the larceny count was unlawful in that the count failed to charge a criminal offense. The Attorney General, with his usual frankness, concedes the sentence on the larceny count cannot be sustained if raised by Habeas Corpus. The prisoner, by his petition, and the State, by the Attorney General’s answer, are now before us. In this state of the record we may treat the judgment on the larceny count as challenged because it [355]*355is not grounded upon a valid indictment. The challenge must be sustained. For that reason, the judgment is arrested. The result of this decision is to strike the seven (7) to nine (9) years’ sentence, leaving the sentences for escape to begin at the end of the sentence of eight (8) to ten (10) years on the breaking and entering count.

Judgment Arrested.

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Bluebook (online)

121 S.E.2d 553, 255 N.C. 353, 1961 N.C. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foster-nc-1961.