State v. Hilton

156 S.E.2d 833 (1967) 271 N.C. 456

STATE of North Carolina
v.
Barry Rocky HILTON.

No. 84.

Supreme Court of North Carolina.

September 27, 1967.

Atty. Gen. T. W. Bruton and Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Joseph Schenck, Canton, for defendant.

PER CURIAM.

Counsel for defendant contends in his brief and oral argument that 10-year sentences were given in two additional cases to codefendant Bobby Joe Johnson after he had given notice of appeal. Subsequently, defendant was given the same sentences as his codefendant. He contends that his sentences were made more severe because Johnson exercised his legal right of appeal. This action does not appear in the record.

"The record imports verity and the Supreme Court is bound thereby. The Supreme Court can judicially know only what appears of record. There is a presumption in favor of regularity. Thus, where the matter complained of does not appear of record, appellant has failed to make irregularity manifest." State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58.

The only assignment of error in the record is the exception to the judgment, which presents only the face of the record proper for review. Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592. We find no errors on the face of the record, and the judgment below must stand.

In the case of State v. Lee, 166 N.C. 250, 80 S.E. 977, the defendant contended there was error because his sentence constituted "cruel and unusual punishment." The Court, speaking through Clark, C. J., stated:

"While we will not hold therefore that as a matter of law the punishment was in excess of the powers of the judge, we are frank to say that it does not commend itself to us as being at all commensurate with the offense, even if the defendant was properly found guilty upon the facts. There was no aggravation nor circumstances which tended to show that the punishment should approximate the highest limit allowed by the law in such cases. It was evidently intended that where there was no aggravation the punishment should approximate the lower limit allowed, and only when aggravation was shown should the highest degree of punishment authorized by the statute be inflicted."

In the instant case the sentences imposed do not exceed the maximum prescribed by the applicable statute, so as to violate defendant's constitutional rights (State v. LePard, 270 N.C. 157, 153 S.E.2d 875). While we do not hold that as a matter of law the punishment was in excess of the powers of the judge, we must note that the sentences were imposed under circumstances which would seem to warrant prompt review by the Board of Paroles.

No error.