State v. . Green , 85 N.C. 600 ( 1881 )

This is a certiorari to bring up from the superior court of Wayne county, the record of the trial of the defendant before Eure, J., had at the January term, 1878, of said court, in which it is alleged there is error, and to have the same reviewed by this court.

It appears from the record that the defendant was tried upon an indictment containing two counts, first for larceny in stealing a horse, and secondly, for receiving the same knowing it to have been stolen. The count for larceny concluded at common law. The defendant pleaded guilty and his Honor sentenced him to fifteen years imprisonment at hard labor in the state penitentiary. There is error. The question presented has been expressly decided by this court in the case of State v. Lawrence,81 N.C. 523. The court below, for the reason assigned in that case, has no power to sentence the defendant to a longer term of imprisonment than ten years. The judgment rendered is therefore reversed, and the case remanded to the superior court of Wayne county, that the defendant now confined in the state prison may be brought before said court by writ of habeas corpus to the end that a proper judgment may be entered against him; and in pronouncing judgment, the time already spent by the defendant in confinement under the erroneous sentence, should be taken into account, so that the duration of his imprisonment should not extend beyond ten years from the date of the original sentence.

Let this be certified to the superior court of Wayne that proceedings may be had in the case agreeably to this opinion and the law of the state.

Error. Reversed and remanded.