State v. Bennett , 271 N.C. 423 ( 1967 )

156 S.E.2d 725 (1967) 271 N.C. 423

STATE of North Carolina
v.
Robert A. BENNETT.

No. 90.

Supreme Court of North Carolina.

September 20, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Melvin K. Elias, Asheville, for defendant appellant.

PER CURIAM.

The defendant was called upon in the superior court to plead to the bill of indictment, not to the warrant under which he was arrested. The caption of an indictment, whether on the front or the back thereof, is not a part of it and the designation therein of the offense sought to be charged can neither enlarge nor diminish the offense charged in the body of the instrument. State v. Davis, 225 N.C. 117, 33 S.E.2d 623; State v. Brickell, 8 N.C. 354. Furthermore, the words, "Third Offense," even if included in the body of the indictment, are not sufficient to charge the offense of felonious escape, it being necessary also to allege in the indictment facts showing that at a certain time and place the defendant was convicted of the previous offense or offenses. G.S. § 15-147; State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264. Consequently, the indictment in the present case charges the defendant with the offense of escape from the lawful custody of the State Prison Department while serving a sentence imposed for the commission of a misdemeanor, without any allegation that he had previously committed the offense of escape.

Obviously, a defendant, called upon to plead to an indictment, cannot plead guilty to an offense which the indictment does not charge him with having committed. 22 C.J.S. Criminal Law § 423(1). Consequently, upon a plea of guilty he may not be given a sentence in excess of the maximum provided by the statute for the offense charged in the indictment. G.S. § 148-45(a) provides that a prisoner who escapes while serving a sentence imposed upon conviction of a misdemeanor "shall for the first such offense be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than three months nor more than one year."

It follows that the judgment from which the defendant appeals imposes upon him a sentence in excess of that which the court was authorized to impose for the offense to which he must be deemed to have pled guilty. The judgment of the court below is, therefore, reversed and the cause remanded to the Superior Court of Buncombe County for the imposition of a sentence within the limits prescribed for a first offense of escape while serving a sentence for a misdemeanor.

Reversed and remanded.