State v. Gunther

Supreme Court of North Carolina

State v. Gunther

251 S.E.2d 462, 296 N.C. 578, 1979 N.C. LEXIS 1202

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1979

DocketNo. 131

StatusPublished

This text of 251 S.E.2d 462 (State v. Gunther) 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. Gunther, 251 S.E.2d 462, 296 N.C. 578, 1979 N.C. LEXIS 1202 (N.C. 1979).

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Opinion

PER CURIAM.

Defendant was tried on bills of indictment charging him with kidnapping one Evonne Sumrell in violation of G.S. 14-39 and as[579]*579saulting her with intent to commit rape in violation of G.S. 14-22. The charges were consolidated for trial and the jury convicted defendant of both offenses. He was sentenced to 25 years imprisonment on the kidnapping conviction and 5 years imprisonment on the felonious assault conviction to commence at the expiration of the kidnapping sentence. The Court of Appeals unanimously found no error in defendant’s trial leading to the convictions. A majority of that court, however, decided that defendant could not be sentenced for the felonious assault conviction inasmuch as this assault was an element of the so-called “aggravated kidnapping” offense of which defendant was also convicted.

The only question presented, therefore, on the State’s appeal is whether this defendant can be sentenced for both the kidnapping conviction and the felonious assault conviction. This question was thoroughly analyzed in our recent decision of State v. Williams, 295 N.C. 655, 249 S.E. 2d 709 (1978). We there answered it affirmatively. The Court of Appeals’ decision in this case was noted in Williams, 295 N.C. at 663, 249 S.E. 2d at 715, and therein implicitly overruled on this point. On the authority, therefore, of Williams we reverse the Court of Appeals’ decision insofar as it ordered that judgment in the felonious assault case, No. 77CRS18040 in the trial court, be arrested. The judgment of the trial court in this case is, therefore, reinstated.

The Court of Appeals being unanimously of the opinion that no error was committed in the trial of these cases, it might well be argued that defendant has no right to appeal from this aspect of the decision. Defendant did not petition this Court for further discretionary review. Nonetheless we have carefully reviewed defendant’s assignments of error and conclude that the Court of Appeals’ refusal to sustain any of them was correct for the reasons given in the majority opinion. Insofar as the Court of Appeals found no error in defendant’s trial its decision is affirmed.

Reversed in part.

Affirmed in part.

Justice BROCK did not participate in the consideration or decision of this case.

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PER CURIAM.

Defendant was tried on bills of indictment charging him with kidnapping one Evonne Sumrell in violation of G.S. 14-39 and as[579]*579saulting her with intent to commit rape in violation of G.S. 14-22. The charges were consolidated for trial and the jury convicted defendant of both offenses. He was sentenced to 25 years imprisonment on the kidnapping conviction and 5 years imprisonment on the felonious assault conviction to commence at the expiration of the kidnapping sentence. The Court of Appeals unanimously found no error in defendant’s trial leading to the convictions. A majority of that court, however, decided that defendant could not be sentenced for the felonious assault conviction inasmuch as this assault was an element of the so-called “aggravated kidnapping” offense of which defendant was also convicted.

The only question presented, therefore, on the State’s appeal is whether this defendant can be sentenced for both the kidnapping conviction and the felonious assault conviction. This question was thoroughly analyzed in our recent decision of State v. Williams, 295 N.C. 655, 249 S.E. 2d 709 (1978). We there answered it affirmatively. The Court of Appeals’ decision in this case was noted in Williams, 295 N.C. at 663, 249 S.E. 2d at 715, and therein implicitly overruled on this point. On the authority, therefore, of Williams we reverse the Court of Appeals’ decision insofar as it ordered that judgment in the felonious assault case, No. 77CRS18040 in the trial court, be arrested. The judgment of the trial court in this case is, therefore, reinstated.

The Court of Appeals being unanimously of the opinion that no error was committed in the trial of these cases, it might well be argued that defendant has no right to appeal from this aspect of the decision. Defendant did not petition this Court for further discretionary review. Nonetheless we have carefully reviewed defendant’s assignments of error and conclude that the Court of Appeals’ refusal to sustain any of them was correct for the reasons given in the majority opinion. Insofar as the Court of Appeals found no error in defendant’s trial its decision is affirmed.

Reversed in part.

Affirmed in part.

Justice BROCK did not participate in the consideration or decision of this case.

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251 S.E.2d 462, 296 N.C. 578, 1979 N.C. LEXIS 1202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gunther-nc-1979.

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