State v. Davis , 267 N.C. 126 ( 1966 )

147 S.E.2d 570 (1966) 267 N.C. 126

STATE
v.
Ollie Melvin DAVIS.

No. 498.

Supreme Court of North Carolina.

April 20, 1966.

Atty. Gen. T. W. Bruton and staff Atty. Theodore C. Brown, Jr., Raleigh, for the State.

Sheldon L. Fogel, Johnson, Gamble & Hollowell, Raleigh, for defendant appellant.

PER CURIAM.

Defendant has one assignment of error that the judgment of imprisonment of the court on each count of each bill of indictment was excessive, and violates the constitutional prohibition against cruel or unusual punishment. A violation of G.S. § 14-119 is a felony, and the statute provides that the punishment shall be imprisonment for not less than four months nor more than ten years, or by a fine in the discretion of the court. A violation of G.S. § 14-120 is a felony, and the statute provides that the person so offending shall be imprisoned for not less than four months nor more than ten years. A violation of G.S. § 14-54 is a felony, and the statute provides for a violation thereof imprisonment for a term of not less than four months nor more than ten years. When punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Stubbs, 266 N.C. 295, 145 S.E.2d 899; State v. Whaley, 263 N.C. 824, 140 S.E.2d 305; State v. Welch, 232 N.C. 77, 59 S.E.2d 199; State v. Stansbury, 230 N.C. 589, 55 S.E.2d 185.

Defendant further contends in his brief as follows: The sentences imposed on the forgery and uttering charges in the three indictments are excessive in view of the relatively small amounts of the checks involved. The General Statutes of North Carolina divide the crime of larceny into two degrees, one a misdemeanor, where the larceny or receiving of stolen goods is of a value of less than $200, and that in the case of forgery or uttering an analogy should be drawn; and that, in view of G.S. § 14-72 dividing larceny into two degrees, punishment for forgery of a sum less than $200 should likewise be considered as a misdemeanor. This contention is untenable, for the very simple reason that the Court has no power to amend an Act of the General Assembly.

The second count in case No. 11751, to which defendant pleaded guilty, charges simply the larceny of certain designated personal property of the value of $129 and does not specify the name of the owner. The plea of guilty to this count was a plea of guilty to a misdemeanor. State v. Cooper, 256 N.C. 372, 124 S.E.2d 91. Imprisonment on this larceny count for ten years is excessive and not authorized by G.S. § 14—72. The sentence on the larceny count is reversed and vacated.

The trial judge ordered that Wake County, pursuant to the provisions of G.S. § 15-4.1, pay the costs of providing for the defendant's counsel a trial transcript, and that the County pay the costs of mimeographing the case on appeal and defendant's brief.

Affirmed as to all the judgments, except the judgment on the larceny count which is reversed and vacated.

MOORE, J., not sitting.