State v. Foster , 271 N.C. 727 ( 1967 )

157 S.E.2d 542 (1967) 271 N.C. 727

STATE
v.
Wallace Elee FOSTER.

No. 496.

Supreme Court of North Carolina.

November 8, 1967.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. George A. Goodwyn, and Millard R. Rich, for the State.

R. L. Brown, Jr., Albemarle, for defendant appellant.

PER CURIAM.

Defendant's first assignment of error reads: "The court erred in imposing the maximum statutory sentence of two years upon the misdemeanor charge of larceny, thus depriving the defendant of the benefit of that time in which he was imprisoned in the State Prison from March 31, 1966 (date of commitment) to August 25, 1966, the date on which he was ordered by the court to be returned to the sheriff of Stanly County." The record shows this: On 31 March 1966 the office of the clerk of the Superior Court of Stanly County issued a commitment ordering the defendant to be committed to the State's prison to serve the sentences imposed at the March 1966 Session of court. Pursuant to this commitment, the defendant remained in the North Carolina prison system from 31 March 1966 through 25 August 1966, at which time Judge McConnell ordered the defendant to be returned to Stanly County and to be released on bond pending the result of his appeal to the Supreme Court.

It is apparent that when Judge Johnston sentenced defendant to serve the maximum two-year sentence for the larceny of the electric battery charger, he did not give him credit for the time served from 31 March 1966 through 25 August 1966. The Attorney General of North Carolina takes the position that the defendant should be given credit for the time served from 31 March 1966 through 25 August 1966. While the facts of this case are not on all-fours with State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, and Williams v. State, 269 N.C. 301, 152 S.E.2d 111, we think that those cases are highly apposite, and the principles there announced should control in this case. This assignment of error is sustained. The Prison Department is ordered forthwith to give this defendant credit on the two-year sentence imposed for the time that he served from 31 March 1966 through 25 August 1966.

Defendant assigns as error that the prison sentence of two years for larceny of the electric battery charger was cruel and unusual punishment and "within the prohibition of the Eighth Amendment to the Federal Constitution which applies to the States through the due process clause of the Fourteenth Amendment." Defendant in his brief states: "In view of many and recent decisions of the Supreme Court of North Carolina, appellant deems it unnecessary to pursue this assignment of error." This assignment of error is overruled. The statutory maximum of imprisonment for the larceny of the electric battery charger, a misdemeanor, was two years, and we have repeatedly held that such being the case it does not constitute cruel and unusual punishment. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216; State v. Robinson, 271 N.C. 448, 156 S.E.2d 854; State v. Hopper, 271 N.C. 464, 156 S.E.2d 857.

The judgment below is

Modified and affirmed.