In Re Powell , 241 N.C. 288 ( 1954 )

84 S.E.2d 906 (1954) 241 N.C. 288

In the Matter of J. D. POWELL.

No. 294.

Supreme Court of North Carolina.

December 15, 1954.

R. Brookes Peters and L. J. Beltman, Raleigh, for the State.

John R. Jordan, Jr., Raleigh, by Court appointment, for defendant.

JOHNSON, Justice.

It is settled law that cumulative sentences may be imposed on conviction or plea of guilty of two or more offenses charged in separate counts of the same indictment. State v. Moschoures, 214 N.C. 321, 199 S.E. 92; State v. Graham, 224 N.C. 347, 30 S.E.2d 151; State v. Chavis, 232 N.C. 83, 59 S.E.2d 348. However, jurisdiction to inflict separate, cumulative punishments in such cases is dependent upon the fact that distinct violations of the law have been committed, and in order that separate offenses charged in one indictment may carry separate punishments, they must rest on distinct criminal acts. 15 Am.Jur., Criminal Law, sections 451 and 470.

The crimes of larceny and receiving stolen property knowing it to have been stolen are different offenses, and not degrees of the same offense. 52 C.J.S., Larceny, § 5. This is explained in detail by Denny, J., in State v. Brady, 237 N. C. 675, 75 S.E.2d 791. It suffices here to note that the crime of receiving presupposes, as an essential element of the offense, that the property in question had been stolen by some one other than the person charged with the offense of receiving. Therefore, it is manifest that a person cannot be guilty both of stealing property and of receiving the same property knowing it to have been stolen. If the one is true, the other cannot be. See Bargesser v. State, 95 Fla. 404, 116 So. 12; Commonwealth v. Haskins, 128 Mass. 60; In re Franklin, 77 Mich. 615, 43 N.W. 997; 32 Am.Jur., Larceny, section 155; Annotation, 80 A.L.R. 171 at page 174. Accordingly, a plea of guilty, as here, of stealing property and of receiving the same property knowing it to have been stolen will not support separate, cumulative sentences.

Nor may the dual punishments here imposed be sustained on the theory that the composite of the two is within the maximum allowed by statute for either of the offenses charged. This is so for the reason it was not within the power of the court below to impose sentence active in part and suspended in part. Where a single offense is involved, the sentence must be made active in full or suspended in full. We do not sanction the split-sentence. It is in effect, as explained by Seawell, J., in State v. Lewis, 226 N.C. 249, 37 S.E.2d 691, an anticipatory pardon or parole, violative of the provisions of the Constitution of North Carolina appertaining to pardons and paroles. See also 15 Am.Jur., Criminal Law, sections 382 and 389.

Since the defendant could not be guilty of both larceny and receiving, the court below had power to impose punishment on only one count in the bill of indictment. Nevertheless, the court gave the defendant an active sentence of twelve months on the receiving count and an eight-year suspended sentence on the larceny count. He has served in full the sentence imposed on the receiving count. This we treat as the valid sentence of the court. The defendant's present confinement is under the sentence imposed on the larceny count, which must be treated as invalid. See also State v. McBride, 240 N.C. 619, 83 S.E.2d 488.

It necessarily follows that the defendant is entitled to immediate release. It is so ordered. To that end the Clerk of this Court will certify copies of this opinion to the Clerk of the Superior Court of Rowan County and to the Director of Prisons, with direction that the defendant be discharged immediately from custody.

Error and remanded.