State v. Silvers, 230 N.C. 300 (1949)

April 20, 1949 · Supreme Court of North Carolina
230 N.C. 300


(Filed 20 April, 1949.)

1. Criminal Law § 76c—

Certiorari will lie to tlie Supreme Court to determine the legality of defendant’s imprisonment upon his contention that his sentence is in excess of that authorized by law for the offense of which he stands convicted.

*3012. Assault § 8d—

Assault with a deadly weapon with intent to kill is a misdemeanor.

3. Criminal Law § 60b—

A sentence directing that defendant be confined in the State’s Prison for a term of ten years at hard labor is in excess of that permitted upon conviction of a misdemeanor, and in this case certiorari is granted and the cause remanded to the Superior Court for further proceedings in com formity with law.

This cause was beard before Moore, J., at tbe August Term, 1948, of YANCEY.

Petition for a writ of certiorari filed in tbe Supreme Court and granted 1 March, 1949.

At tbe August Term, 1948, of tbe Superior Court of Yancey County, there were four criminal cases pending against tbe petitioner arising out of a single occurrence, and in each case tbe Bill of Indictment charged an assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death.

Tbe defendant says in bis petition for writ of certiorari that at tbe time be was called upon to plead to these indictments, be was in tbe custody of tbe Sheriff of Yancey County, having been arrested immediately prior thereto and held in jail; that be was not financially able to employ counsel and was not represented by counsel in tbe court below.

It is alleged in tbe petition that when tbe cases were called for trial they were consolidated, and tbe record shows tbe defendant entered tbe following plea: “Guilty of assault with intent to kill”; that tbe court thereupon consolidated tbe four cases for the purpose of judgment, and imposed a sentence directing that tbe “defendant be confined in Central Prison at Raleigh for a term of 10 years to do bard labor.” It further appears tbe defendant was taken to Central Prison in Raleigh tbe day-following tbe pronouncement of tbe judgment, and was thereafter transferred to Prison Camp No. 908 in McDowell County, where be is now imprisoned.

Tbe defendant further alleges that be has been advised that tbe sentence imposed is in excess of that authorized by law,- in that be did not plead guilty to a felony but only to a misdemeanor.

Wherefore be prays that tbe writ of certiorari be granted to tbe end that tbe legality of bis imprisonment may be determined.

Tbe Attorney-General concedes error.

Attorney-General McMullan and' Assistant Attorney-General Bruton for the State.

W. E. Anglin for defendant.

*302Denny, J.

We held in S. v. Gregory, 223 N.C. 415, 21 S.E. 2d 140, that an assault with intent to kill is a.misdemeanor. Therefore, upon the authority of that decision, and S. v. Green, 85 N.C. 600, and S. v. Lawrence, 81 N.C. 522, the judgment entered below is reversed and the cause is remanded to the Superior Court of Yancey County for proper judgment on the plea entered.

•The prison-authorities are directed to deliver the defendant into the custody of the Sheriff of Yancey County, to the end that the defendant may be given an opportunity to post bond pending the entry of a proper judgment on his plea.

let this opinion be certified immediately to the Superior Court of Yancey County, in order that further proceedings may be had in accordance therewith and in conformity with the law in such cases.

Error and remanded.