State v. . Kelly , 206 N.C. 660 ( 1934 )

CoNNOR, J.

Chapter 542, Public Laws of North Carolina, 1933, is as follows:

“Section 1. That it shall be unlawful for any person, ‘firm or corporation, or any individual, male or female, or its or their agents, to kidnap or cause to be kidnapped any human being, or to demand a ransom of any person, firm or corporation, male or female, to be paid on account of kidnapping, or to hold any human being for ransom; Provided, however, that this act shall not apply to a father or mother for taking into their custody their own child.

Section 2. That any person, or their agent, violating or causing to be violated any provision of this act shall be guilty of a felony, and upon conviction therefor shall be punishable by imprisonment for life.

Section 3. That any firm ox corporation violating or causing to be violated through their agent or agents, any of the provisions of this act, and upon being found guilty, shall be liable to the injured party suing therefor, the sum of twenty-five thousand dollars ($25,000) and shall forfeit its or their charter and right to do business in the State of North Carolina.

Section 4. That all laws and clauses of laws in conflict with the provisions of this act are hereby repealed.

Section 5. That this act shall be in full force and effect from and after its ratification.”

This statute was ratified on 15 May, 1933, and repeals C. S., 4221, which was as follows:

“Section 4221. If any person shall forcibly or fraudulently kidnap any person, he shall be guilty of a felony, and upon conviction may be punished in the discretion of the court, not exceeding twenty years in the State’s prison.”

The effect of chapter 542, Public Laws, 1933, is to increase the maximum term of imprisonment which the court may in its discretion impose upon a person who has been convicted of kidnapping in this State. The word “punishable” as used in section 2 of the act indicates the intention of the General Assembly to leave the term of imprisonment in the discretion of the court, and to increase the maximum term of imprisonment upon a conviction of kidnapping in this State from twenty years to life.

The learned and just judge who presided at the trial of this action was of the opinion that he had no discretion as to the term of imprison ment which he was required by the statute to impose upon the defendants in this action upon their conviction of kidnapping, as charged in the first count of the indictment. In this, he was in error. But for this error, it is clear that he would not have rendered a judgment which imposed a sentence which he thought was too drastic and severe, in view of all the facts shown by the evidence for the State. The judgment is reversed and set aside, and the action remanded to the Superior Court of Yance County in order that a judgment imposing a sentence within the sound judicial discretion of said court may be rendered. From such judgment, the defendants may, if they are so advised, appeal to this Court. On such appeal, assignments of error duly made in accordance with the rules of this Court will be considered and questions of law thereby presented decided.

The cases on appeal now on file in this Court have not been prepared in accordance with the rules of this Court, and will not be considered on a subsequent appeal in this action. If the defendants shall appeal from the judgment which will be rendered in accordance with this opinion, a statement of the case on appeal must be prepared in accordance with the rules of this Court. Otherwise assignments of error on such appeal will not be considered.

Remanded.

ScheNCk, J., took no part in the consideration or decision of this case.