Summary
In State v. Davidson, 124 N.C. 839, it was pointed out that an appeal should lie in such cases at the instance of the State, and attention was called to the inadvertence of the Legislature (which alone has the power to prescribe the instances in which the State may appeal) in not amending sec. 1237, so as to embrace appeals by the State in cases going to the Superior Court from the Western Criminal Circuit. This inadvertence did not occur in the act (Laws 1899, ch. 471) creating the Eastern District Court, section 6 whereof expressly provides for such appeals.
Summary of this case from State v. MallettOpinion
(Decided 2 May, 1899.)
Indictment — Larceny — Second Offense — Appeal by State.
1. Where the indictment for larceny charges the value of the property stolen to be less than $20, or the jury should so find, the imprisonment for the first offense cannot exceed one year in the penitentiary or common jail, unless the larceny is from the person, or from the dwelling, by breaking and entering in the daytime. Laws 1895, ch. 285.
2. When a second conviction is punished with other or greater punishment than for a first conviction, the first conviction shall be charged as required in The Code, sec. 1187, so as to be passed on by the jury.
3. Where the sentence imposed is plainly within the discretion of the judge, he may properly have taken into consideration the fact that it was not the first offense.
4. The State's right of appeal is recognized, but limited, by C. S. 4649.
THE defendant was convicted of larceny in Criminal Circuit Court of BUNCOMBE — was sentenced to four years' imprisonment, and appealed to the Superior Court — the case was remanded to the criminal court for proper sentence, for the reason that the bill charged the value of $1, but did not charge it as a second offense. The State appealed.
(843) Attorney-General for the State.
Mark W. Brown for defendant.
Laws 1895, ch. 285, sec. 1, provides, "In all cases of larceny where the value of the property stolen does not exceed $20, the punishment shall for the first offense not exceed imprisonment in the penitentiary or common jail for a longer term than one year." Section 2 excepts from the operation of this act larceny from the person or from a dwelling by breaking and entering in the daytime. Section 3 provides that in all cases of doubt the jury shall fix in the verdict the value of the property stolen.
In the present case the defendant was convicted of larceny in the Criminal Circuit Court of Buncombe upon an indictment charging the value of the property at $1. The indictment did not charge that the defendant had been theretofore convicted of any larceny. The court, however, sentenced the defendant to imprisonment for four years upon his admission of a former conviction for larceny. On appeal to the Superior Court that court adjudged the sentence of the Criminal Court illegal and remanded the case that a proper sentence might be entered, from which judgment the solicitor appealed to this court.
The Code, sec. 1187 (now C. S., 4617), prescribes that when a second conviction is punished with other or greater punishment than for a first conviction the first conviction shall be charged in the manner therein set out, and what proof shall be sufficient evidence thereof. When the property stolen is charged of less value than $20 (or when charged at more than that value, if it is found by the jury to be of less than $20), no punishment greater than one year's imprisonment can be inflicted unless it is charged in the indictment that the defendant has been formerly convicted of larceny, except that should the proof show that the larceny was from the person or by breaking and entering a dwelling-house in (844) the daytime the defendant cannot claim the protection of this statute, and hence it is not necessary to charge in the indictment the manner of the larceny. S. v. Bynum, 117 N.C. 749. If the larceny was committed in the manner specified in section 2 of the act (by taking from the person or breaking into a dwelling in the daytime) the case falls under the general statute, and though the goods stolen are of less value than $20, allegation and proof as to former conviction become immaterial. S. v. Harris, 119 N.C. 811. In the case before us, the larceny was not committed in either of the modes mentioned in section 2, and the value of the goods being charged at less than $20, and no previous conviction for larceny being alleged in the bill, it was erroneous to pass sentence of imprisonment for more than one year. Whether there was a former conviction or not was for the jury, not for the court. Had the bill charged that this was not the first offense, then the defendant's admission that he had been formerly convicted of larceny would have been competent to prove the charge, but in the absence of such charge (as provided by C. S. 4617), the admission, if believed, was probata without allegata and of no effect. This case differs materially from S. v. Wilson, 121 N.C. 654, where the judge imposing a sentence plainly within his discretion, recited in his judgment the former convictions of the defendant as a reason for the severity of his sentence.
The defendant further insisted that no appeal lay in behalf of the State, from the decision of the Superior Court. As the appeal to that court and its decision thereon are purely upon questions of law, S. v. Hinson, 123 N.C. 755, it would seem that the State should be entitled to an appeal to this Court from the judgment of the Superior Court, but the (845) Legislature by inadvertence has so far failed to so provide in The Code, sec. 1237 (now C. S., 4649), and while, from its public importance, we pass upon the point presented, we feel constrained to dismiss the appeal — the same course which was taken in Hinson's case, supra.
APPEAL DISMISSED.
Cited: S. v. Bost, 125 N.C. 710; S. v. Mallett, ib., 721; Mott v. Comrs., 126 N.C. 882; S. v. Savery, ib., 1088; In re Holley, 154 N.C. 171, 172; S. v. Dunlap, 159 N.C. 493; McLean v. Johnson, 174 N.C. 347; S. v. Walker, 179 N.C. 731.