State v. Stonestreet , 243 N.C. 28 ( 1955 )

89 S.E.2d 734 (1955) 243 N.C. 28

STATE
v.
Edward C. STONESTREET.

No. 361.

Supreme Court of North Carolina.

November 2, 1955.

Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant, appellant.

Atty. Gen. Wm. Rodman, Jr., and Asst. Atty. Gen. Harry W. McGalliard for the State.

BOBBITT, Justice.

First, we consider the conviction for resisting arrest as charged. While not argued in appellant's brief, we are constrained to hold that the motion in arrest of judgment should have been allowed. If the offense is not sufficiently charged in the indictment, this Court, ex mero motu, will arrest the judgment. State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Watkins, 101 N.C. 702, 8 S.E. 346. The indictment is fatally defective in that it does not allege all the facts necessary to constitute an offense under G.S. § 14-223. Specifically, it fails to charge the official duty the designated officer was discharging or attempting to discharge. State v. Harvey, 242 N.C. 111, 86 S.E.2d 793, and cases cited. As to the essentials of an indictment charging bribery, G.S. § 14-218, see State v. Greer, 238 N.C. 325, 77 S.E.2d 917.

When an indictment charges separately the unlawful possession and unlawful transportation of intoxicating liquor, a separate judgment may be pronounced on each count. State v. Chavis, 232 N.C. 83, 59 S.E.2d 348. Here the defendant pleaded guilty to unlawful possession and to unlawful transportation of intoxicating liquor. Even so, the plea had significance only to the extent it was responsive to the charge laid in the indictment. The indictment does not charge unlawful possession of intoxicating liquor. Our statutes make no reference to "receiving" of intoxicating liquor. Possibly this word was borrowed from another jurisdiction. Hence, this Court, ex mero motu, arrests the judgment predicated on defendant's plea of guilty of unlawful possession of intoxicating liquor.

The indictment did properly charge unlawful transportation of intoxicating liquor. Defendant's plea of guilty was responsive thereto. The judgment pronounced therein is valid and must be upheld.

Separate judgments, each imposing a sentence of twelve months to the same place of confinement, were pronounced. Each judgment is complete within itself. As a matter of law, the sentences run concurrently. In re Parker, 225 N.C. 369, 35 S.E.2d 169. Compare: In re Smith, 235 N.C. 169. 69 S.E.2d 174; In re Bentley [State v. Bentley], 240 N.C. 112, 81 S.E.2d 206.

Where two or more indictments or counts are consolidated for the purpose of judgment, and a single judgment is pronounced thereon, even though the plea of guilty or conviction on one is sufficient to support the judgment and the trial thereon is free from error, the award of a new trial on the other indictment(s) or count(s) requires that the cause be remanded for proper judgment on the valid count. "Presumably this (the single judgment) was based upon consideration of guilt on both charges." Devin, J., later C. J., in State v. Camel, 230 N.C. 426, 53 S.E.2d 313, 315; also, see State v. Braxton, 230 N.C. 312, 52 S.E.2d 895. But the rule is otherwise when, as here, separate judgments, each complete within itself, are pronounced on separate indictments or counts. In such case, a valid judgment pronounced on a plea of guilty to a valid count in a bill of indictment will be upheld. State v. Thorne, supra; State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9.

Defendant urges that this Court set aside all judgments pronounced because of the comment made by the trial judge to him and to his counsel before any judgment was pronounced on any count. In effect, the contention is that the comment was such as to disqualify the trial judge from pronouncing any judgment. Upon the record before us, we cannot so hold.

The validity of a suspended sentence rests upon the consent of the defendant, express or implied. State v. Cole, 241 N.C. 576, 86 S.E.2d 203, and cases cited. The court's suggestion that he was disposed to make the active sentences he had in mind to pronounce less if defendant would agree that the sentence on one count be suspended on certain undefined terms apparently did not interest the defendant. Hence, there was no discussion whatever as to what the court had in mind, either in respect to the length of the active sentences or in respect to the length of the sentence to be suspended or the conditions of suspension thereof. Nor was there any comment or suggestion that the suspended sentence would restrict the defendant's right of appeal from judgment imposing active sentences. In this connection, while he excepted to the judgments pronounced, defendant did not except to the comment of the court. Be that as it may, prejudicial error in this regard has not been shown.

For the reasons stated, the judgment predicated on the defendant's plea of guilty of the unlawful transportation of intoxicating liquor is affirmed; the judgment predicated on defendant's plea of guilty of unlawful possession of intoxicating liquor is arrested; and the judgment predicated upon defendant's conviction when tried upon defective bill of indictment attempting to charge resisting an officer under G.S. § 14-223 is arrested.

Judgment affirmed as to unlawful transportation of intoxicating liquor.

Judgment arrested as to unlawful possession of intoxicating liquor.

Judgment arrested as to resisting arrest.