State v. . Stevens

Supreme Court of North Carolina

State v. . Stevens

61 S.E. 629, 146 N.C. 679, 1908 N.C. LEXIS 284

CourtSupreme Court of North Carolina

DecidedMay 25, 1908

StatusPublished

Cited by6 cases

This text of 61 S.E. 629 (State v. . Stevens) 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. . Stevens, 61 S.E. 629, 146 N.C. 679, 1908 N.C. LEXIS 284 (N.C. 1908).

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Opinion

BnowN, J.

According to the findings of fact of the court below, it is needless to examine into the power of the Judge of the Superior Court during the term at which sentence is imposed to recall a prisoner, after he has commenced to serve his sentence, and increase his punishment.

It is plain that when this defendant was sentenced, on the 18th, his Honor retained the matter of punishment in fieri at defendant’s request, and that he was remanded to jail for safe-keeping until the defendant could secure the attendance of a witness. His Honor finds that, at the time the first sentence was announced from the bench, “defendant’s counsel asked the court to reserve its sentence and give the defendant an opportunity to get Dr. Millinder as a witness to show that *681 defendant was not able to do bard labor. Tbe court replied that he would hear the doctor, and if, after hearing him, he saw fit, he would change the sentence. About two or three days afterwards the doctor’s attendance was procured, and he testified that he had examined the defendant and was of opinion that if defendant was put at hard labor within two months he would probably experience some physical pain therefrom, but that after two months he thought hard labor would not cause any pain.” Thereupon the court imposed the last and final sentence, from which defendant appealed.

The power of the Judge to hold the matter of final punishment under consideration during the term, and to take further testimony, cannot be doubted. State v. Brittain, 93 N. C., 588. In this instance it was done at the request of defendant’s counsel. Under such circumstances the authorities cited in defendant’s brief (Lang case, 18 Wallace, 163, and Warren's case, 92 N. C., 825) have no application.

The judgment of the Superior Court is

Affirmed.

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BnowN, J.

According to the findings of fact of the court below, it is needless to examine into the power of the Judge of the Superior Court during the term at which sentence is imposed to recall a prisoner, after he has commenced to serve his sentence, and increase his punishment.

It is plain that when this defendant was sentenced, on the 18th, his Honor retained the matter of punishment in fieri at defendant’s request, and that he was remanded to jail for safe-keeping until the defendant could secure the attendance of a witness. His Honor finds that, at the time the first sentence was announced from the bench, “defendant’s counsel asked the court to reserve its sentence and give the defendant an opportunity to get Dr. Millinder as a witness to show that *681 defendant was not able to do bard labor. Tbe court replied that he would hear the doctor, and if, after hearing him, he saw fit, he would change the sentence. About two or three days afterwards the doctor’s attendance was procured, and he testified that he had examined the defendant and was of opinion that if defendant was put at hard labor within two months he would probably experience some physical pain therefrom, but that after two months he thought hard labor would not cause any pain.” Thereupon the court imposed the last and final sentence, from which defendant appealed.

The power of the Judge to hold the matter of final punishment under consideration during the term, and to take further testimony, cannot be doubted. State v. Brittain, 93 N. C., 588. In this instance it was done at the request of defendant’s counsel. Under such circumstances the authorities cited in defendant’s brief (Lang case, 18 Wallace, 163, and Warren's case, 92 N. C., 825) have no application.

The judgment of the Superior Court is

Affirmed.

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Bluebook (online)

61 S.E. 629, 146 N.C. 679, 1908 N.C. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stevens-nc-1908.

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