State v. Adams , 266 N.C. 406 ( 1966 )

146 S.E.2d 505 (1966) 266 N.C. 406

STATE
v.
Jack Lang ADAMS.

No. 88.

Supreme Court of North Carolina.

February 4, 1966.

T. W. Bruton, Atty. Gen., Bernard A. Harrell, Asst. Atty. Gen., for the State.

I. C. Crawford, Asheville, for defendant appellant.

HIGGINS, Justice.

Technically the indictment charged manslaughter. However, the court, by its clear and explicit instructions, limited the jury's consideration to the question of guilt or innocence of involuntary manslaughter. The evidence presented the issue whether the defendant was guilty of culpable negligence in the operation of his automobile on the wrong side of the road, at excessive speed, and while he was under the influence of liquor; and, if so, whether the negligence proximately caused Mrs. Parker's death. The jury returned a verdict of guilty. By limiting the verdict to involuntary manslaughter, the court withdrew voluntary manslaughter from the jury. The court's election to submit only one charge was equivalent to a verdict of not guilty on all other charges included in the bill. State v. Mundy, 243 N.C. 149, 90 S.E.2d 312; State v. Smith, 226 N.C. 738, 40 S.E.2d 363; State v. Whitley, 208 N.C. 661, 182 S.E. 338.

During the trial the defendant took numerous exceptions to the admission of evidence and to the court's charge. We have examined the assignments of error based on these exceptions. They fail to disclose error of material substance. In fact, up to and including the verdict, the trial was in accordance with procedural rules. However, after verdict, the court committed error in the imposition of punishment.

Prior to April 10, 1933, the prescribed punishment for manslaughter (G.S. § 14-18) was imprisonment for not less than four months nor more than 20 years. Effective on the above date, the General Assembly (by Ch. 249, Public Laws, Session 1933) amended the statute by adding: "Provided, however, that in cases of involuntary manslaughter, the punishment shall be in the discretion of the court, and the defendant may be fined or imprisoned, or both." "* * * (T)he proviso was intended and designed to mitigate the punishment in cases of involuntary manslaughter * * *." State v. Dunn, 208 N.C. 333, 180 S.E. 708.

This Court, in State v. Blackmon, 260 N.C. 352, 132 S.E.2d 880, held that punishment "in the discretion of the court" is not specific punishment and hence is governed by the limits (10 years for felonies and two years for misdemeanors) prescribed in G.S. §§ 14-2 and 14-3. In so holding, the Blackmon decision followed State v. Driver, 78 N.C. 423, and overruled State v. Swindell, 189 N.C. 151, 126 S.E. 417, and State v. Cain, 209 N.C. 275, 183 S.E. 300, both of which were based on the dictum of State v. Rippy, 127 N.C. 516, 37 S.E. 148. In Rippy the punishment was within the limits of G.S. § 14-2. The effect of the decision in Blackmon is to hold the maximum provided in G.S. §§ 14-2 and 14-3 places a ceiling on the court's power to punish by imprisonment when a ceiling is not otherwise fixed by law.

For the reasons herein stated, we hold the court was without power to impose a sentence of 18-20 years for involuntary manslaughter. The judgment of imprisonment is set aside. The cause is remanded to the Superior Court of Buncombe County for imposition of a sentence authorized by law. In fixing punishment, the court will give the defendant credit for any time served under the original sentence.

Remanded for judgment.