State v. Grant , 1969 N.C. App. LEXIS 1628 ( 1969 )

MALLARD, C.J.

Defendant contends the trial court committed error in the charge in stating a stipulation entered into by the State and the defendant. On page fourteen of the record the stipulation is set out as follows;

“At this point it is stipulated that if Mr. Lutz were present in Court he would stipulate that he had administered a blood alcohol test on the defendant and that the test showed that the defendant had a content of point twenty-two {.22%) alcohol in his blood stream.”

The entire portion of the charge of the court excepted to reads, “However, it has been stipulated by his counsel that the result of that test was point two-two (.22) percent.”

The stipulation as stated by Judge Fountain was not in the exact words of the stipulation in the record, but when read in context, the substance is substantially the same. The defendant’s contention that the judge committed prejudicial error in stating the stipulation is without merit.

The only other assignment of error brought forward by the defendant in his brief is that the court committed error in entering the judgment. The defendant contends that an active prison sentence, although authorized by G.S. 20-179, is contrary to custom, and therefore he is entitled to a new trial or at least that the case ought to be remanded and another sentence imposed “in accordance with prevailing custom.” This contention is without merit. The determination of what sentence, within the limits fixed by the Legislature, shall be imposed in a case is the duty of the trial judge. The statute with respect to the imposition of sentences in North Carolina upon a conviction, or plea of guilty, of the crime of operating an automobile on the public highways while under the influence of intoxicating liquor is G.S. 20-179. Under this statute a maximum sentence of two years may be imposed, and therefore a sentence of six months in prison is not excessive. State v. Lee, 247 N.C. 230, 100 S.E. 2d 372; State v. Morris, 2 N.C. App. 262, 163 S.E. 2d 108; State v. Morris, No. 414, Fall Session 1968, N. C. Supreme Court, Filed 21 January 1969.

In the trial and sentence there is

No error.

Campbell and MoRRis, JJ., concur.