State v. Efird

157 S.E.2d 538 (1967) 271 N.C. 730

STATE
v.
Jimmy Leverne EFIRD.

No. 495.

Supreme Court of North Carolina.

November 8, 1967.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Wm. W. Melvin, and Staff Atty. T. B. Costen, Raleigh, for the State.

R. L. Brown, Jr., Albemarle, for defendant appellant.

PER CURIAM.

Defendant assigns as error (1) the denial of his motions for judgment as of nonsuit, and (2) the judgment (in respect of quantum of punishment) in the involuntary manslaughter case.

Defendant's motions for judgment as of nonsuit were properly overruled. In brief, the State offered evidence tending to show: On January 6, 1967, about 11:45 p. m., defendant, who had no operator's license, was operating a 1962 Chevrolet on Aquadale Road, a paved public highway in Stanly County. Notwithstanding protests of passengers in the car, he operated said car at a speed of 80 miles per hour in a 55-mile per hour speed zone. While so operating the car, defendant was under the influence of intoxicating liquor. The car operated by defendant failed to make a curve, ran off the road, crashed into a tree, etc., thereby causing Elon Deliliah Hall, one of the passengers, to sustain fatal injuries.

Defendant contends involuntary manslaughter is a "noninfamous" felony for which punishment was limited to two years under G.S. § 14-2. This contention was considered and decided adversely to defendant in State v. Swinney, 271 N.C. 130, 155 S.E.2d 545. In Swinney, a judgment imposing a sentence of 5-7 years for involuntary manslaughter was pronounced. The Court held: "The defendant's contention that involuntary manslaughter is a misdemeanor for which punishment cannot exceed two years is not sustained." The dissent in Swinney did not relate to this holding.

It is noteworthy that G.S. § 14-2, as amended by Chapter 1251, Session Laws of 1967, now provides: "Every person who shall be convicted of any felony for which no specific punishment is prescribed by statute shall be punishable by fine, by imprisonment for a term not exceeding ten years, or by both, in the discretion of the court." (Our italics.)

Separate judgments, each imposing a prison sentence, were pronounced. Each judgment is complete within itself. Absent an order to the contrary, these sentences run concurrently as a matter of law. State v. Duncan, 208 N.C. 316, 180 S.E. 595; In re Parker, 225 N.C. 369, 35 S.E.2d 169; State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734; State v. Troutman, 249 N.C. 398, 106 S.E.2d 572. It is noted that G.S. § 15-6.2, based on Chapter 57, Session Laws of 1955, provides: "When by a judgment of a court or by operation of law a prison sentence runs concurrently with any other sentence a prisoner shall not be required to serve any additional time in prison solely because the concurrent sentences are for different grades of offenses or that it is required that they be served in different places of confinement."

No error.