State v. . Crumpler , 90 N.C. 701 ( 1884 )

The indictment is in the usual form charging the offence as a misdemeanor. After verdict of guilty, the counsel for defendant moved in arrest of judgment upon the ground that the offence of obtaining goods by false pretence is a felony, and the word "feloniously," which was necessary to characterize the offence, having been omitted in the indictment, no offence against the criminal law of the state is charged. The motion was overruled by the court, and the defendant appealed from the judgment pronounced — four months in the county jail. The cause assigned for the arrest of judgment is groundless. The offence of obtaining goods by false pretence is a misdemeanor, because it is not made a felony by statute. Bat. Rev., ch. 32, § 67.

But we think His Honor committed an error in sentencing the defendant to four month's imprisonment in the county jail. The punishment imposed was the punishment for a misdemeanor at common law, which His Honor had no right to award. "Offences made misdemeanors by statute, where a specific punishment is not prescribed, shall be punished as misdemeanors at common law; but the punishment prescribed in section 29 of this chapter shall be used only for crimes that are infamous or done in secrecy and malice, or done with deceit and intent to defraud." Bat. Rev., ch. 32, § 108.

For the offence of obtaining goods by false pretence, the legislature has prescribed a specific punishment, and His Honor had no power to impose any other punishment than that mentioned by the statute. In section 67,supra, the offence of obtaining goods by false pretence is defined, and the punishment prescribed is either by a fine not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the penitentiary of the state for a term not less than one year or more than five years, or both, at the discretion of the court.

The provisions of this statute have not been changed in any respect by THE CODE — see section 1026.

There is error. Let this be certified to the superior court of Cumberland county that that court may proceed to judgment in conformity to this opinion and the law.

Error in the judgment pronounced.