State v. . Parker

17 S.E.2d 475, 220 N.C. 416, 1941 N.C. LEXIS 552

• Court: Supreme Court of North Carolina
• Decided: November 26, 1941
• Status: Published

Opinion

ClaricsoN, J.

The following are the exceptions and assignments of error made by defendant: “The defendant says that his Honor erred in his judgment in sentencing the defendant to work on the public highway of North Carolina for a period of six months, as set forth in Exception No. 1. His Honor erred in sentencing the defendant to work for a period of twelve months for temporary use of an automobile when no damage or misconduct, except the use of the automobile, as set forth in Exception No. 2.” Neither one can be sustained.

The defendant entered a plea of nolo contendere (1) for the larceny of an automobile, for which he was sentenced for twelve months; (2) to the operation of an automobile while intoxicated, for which he was sentenced six months. As set forth in the judgment, the defendant was an old offender of the laws of his State for many serious offenses, but mercy was shown him by the same judge who sentenced him in this case. The defendant in the two cases entered a plea of nolo contendere.

In S. v. Burnett, 174 N. C., 796 (797), is the following: “A plea of nolo contendere, which is still allowed in some courts, is regarded by some writers as a g-wasi-confession of guilt. Whether that be true or not, it is equivalent to a plea of guilty in so far as it gives the court the power to punish. It seems to be universally held that when the plea is accepted by the court, sentence is imposed as upon a plea of guilty. Com. v. Ingersoll, 145 Mass., 381; 12 Cyc., 354.” In re Stiers, 204 N. C., 48 (50).

In S. v. Wilson, 218 N. C., 769 (774), it is written: “The court below did not exceed the limit of the statute. Within the limit of the statute the court is given the discretion to fix the punishment. We see no abuse of the discretion. As said in S. v. Swindell, 189 N. C., 151 (155): ‘Though the punishment is great, the protection due to society is greater. The hope is to amend the offender, to deprive him of the opportunity to do future mischief, and, above all, an example to deter others.’ ” The value of the truck stolen was $325.00.

N. C. Code, 1939 (Micbie), section 4249, is as follows: “All distinctions between petit and grand larceny, where the same has had the benefit of clergy, are abolished; and the offense' of felonious stealing, where no other punishment shall be specifically prescribed therefor by statute, shall be punished as petit larceny is: Provided, that in cases of much aggravation, or of hardened offenders, the court may, in its discretion, sentence the offender to the state’s prison for a period not exceeding ten years.”

Section 4251: “The larceny of property, or the receiving of stolen goods knowing them to be stolen, of the value of not more than twenty dollars, is hereby declared a misdemeanor and the punishment therefor shall be in the discretion of the court,” etc.

Sec. 2621 (286) : “It shall be unlawful and punishable, as provided in section 2621 (325), for any person, whether licensed or not, who is a habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this state.”

Sec. 2621 (325) : “Every person who is convicted of violation of section 2621 (286), relating to habitual users of narcotic drugs or driving while under the influence of intoxicating liquor or narcotic drugs, shall be punished by imprisonment in the county or municipal jail for not less than thirty days nor more than one year, or by fine of not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000.00), or by both such fine and imprisonment. On a second or subsequent conviction for the same offense he shall be punished by imprisonment for not more than two years or fined not more than one thousand dollars ($1,000.00), or by both fine and imprisonment, in the discretion of the court.”

Sec. 4506: “Any person who shall, while intoxicated or under the influence of intoxicating liquors or bitters, morphine or other opiates, operate a motor vehicle upon any public highway or cartway or other road, over which the public has a right to travel, of any county or the streets of any city or town in this State, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty dollars or imprisoned not less than thirty days, or both, at the discretion of the court, and the judge shall upon conviction, deny said person or persons the right to drive a motor vehicle on any of the roads defined in this act for a period of not more than twelve months nor less than ninety days.”

It is well settled that when no time is fixed by the statute, an imprisonment for two years will not be held cruel and unusual. S. v. Driver, 78 N. C., 423; S. v. Miller, 94 N. C., 904; S. v. Farrington, 141 N. C., 844 (845).

The defendant contends “That the judgment in this case for the operation of an automobile while under the influence of liquor, is void, for tbe reason tbat tbe statute fixes tbe penalty of a fine of Fifty ($50.00) Dollars and tbe surrender of bis license, and denying tbe defendant tbe right to drive an automobile for a period of twelve (12) months.” We cannot so bold.

Tbe judgment of tbe court below imposes an imprisonment of six months. Tbe above statute allows this — it says “Shall be fined not less than Fifty ($50.00) Dollars or imprisoned not less than thirty (30) days.” Section 4173 prescribes punishment for misdemeanors.

Tbe defendant contends tbat tbe bail fixed by tbe trial judge pending appeal was excessive. This Court, in tbe case of S. v. Bradsher, 189 N. C., 401 (404), discussing tbe question of a defendant’s right to bail pending appeal to the Supreme Court, said: “Defendant, T. C. Brad-sher, having been convicted of a misdemeanor, appealed from tbe judgment of tbe court. Tbe court was required by statute to allow him bail, pending tbe appeal. C. S., 4653. But for this statute, tbe allowance of bail to defendant, after conviction, would have been in tbe sound discretion of tbe court. After conviction, there is no constitutional right to bail. Article I, section 14, of tbe Constitution of North Carolina, in so far as it guarantees, by implication, tbe right to bail does not apply. 3 R. C. L., p. 15; 6 O. J., 966.”

Tbe question of bond on appeal is largely in tbe discretion of tbe court below, and we can see no abuse of discretion on tbe facts of record in this action.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.