State v. Miller , 237 N.C. 427 ( 1953 )

75 S.E.2d 242 (1953) 237 N.C. 427

STATE
v.
MILLER.

No. 79.

Supreme Court of North Carolina.

March 25, 1953.

R. Brookes Peters, Laurence J. Beltman and E. W. Hooper, Raleigh, for Walter F. Anderson, Director of Prisons, North Carolina, respondent.

ERVIN, Justice.

G.S. § 90-88 and G.S. § 90-108 constitute parts of the Uniform Narcotic Drug Act, which is codified as Article 5 of Chapter 90 of the General Statutes. G.S. § 90-111 provides that "Any person violating any provision of this article shall, upon conviction, be punished for the first offense by a fine not exceeding one thousand ($1,000.00) dollars or by imprisonment for not exceeding three years, or both; and for any subsequent offense by a fine not exceeding three thousand dollars ($3,000.00) or by imprisonment for not exceeding five years, or both."

Where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty. G.S. § 15-147; State v. Fowler, 193 N.C. 290, 136 S.E. 709; State v. Walker, 179 N.C. 730, 102 S.E. 404; State v. Dunlap, 159 N.C. 491, 74 S.E. 626; State v. Davidson, 124 N.C. 839, 32 S.E. 957. Since the indictment did not allege that either of the offenses charged was a second or subsequent offense, the court was without power in law to impose a judgment on either count in excess of that prescribed by G.S. § 90-111 for a first offense.

It is to be observed, moreover, that persons violating the provisions of the Uniform Narcotic Drug Act are not punishable "by either death or imprisonment in the state's prison." G.S. § 90-111. This being true, they must be punished as misdemeanants rather than as felons. G.S. § 14-1.

Despite these considerations, the defendant is not entitled to either a discharge or a new trial. His plea of guilty is valid. In consequence, the judgment on each count is set aside, and the cause is remanded to the Superior Court of Buncombe County for proper sentence on each count. When the court below pronounces judgment anew, it will give the defendant credit for the time he has served in execution of the judgment on the first count which is hereby vacated. In re Sellers, 234 N.C. 648, 68 S.E.2d 308.

To the end that this decision may be effectuated without delay, the Clerk of this Court will certify a copy of this opinion to the solicitor of the solicitorial district embracing Buncombe County, and the Director of the State Prison will deliver the defendant into the custody of the Sheriff of Buncombe County.

Error and remanded