State v. Chapman

BROCK, Chief Judge.

Defendant contends that the trial court committed error in admitting into evidence the commitments for sentences imposed for convictions for prior escapes for the purpose of proving the prior convictions of defendant for escape.

The three copies of commitment orders offered by the State constituted the only evidence introduced for the purpose of showing the prior convictions for the offense of escape. The State has attempted to prove that the alleged escape was a fifth offense of escape committed by defendant.

It seems that the District Attorney has assumed a greater burden for the State than is necessary. The indictment alleges a fifth offense of escape. This creates the chore of offering competent evidence of four prior convictions for the offense of escape. Under G.S. 148-45 the maximum punishment which can be imposed for an offense of escape is authorized for a second offense. If the indictment had charged second offense, instead of fifth, the State would have needed to prove only one of the prior convictions.

“Where a person is charged in a bill of indictment with an offense which, on conviction thereof, is punishable with a greater penalty than on the first conviction, and the indictment properly alleges a prior conviction, G.S. 15-147 provides that ‘a transcript of the record of the first conviction, duly certified, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction.’ cf. State v. Powell, 254 N.C. 231, 118 S.E. 2d 617.” State v. Walls, 4 N.C. App. 661, 167 S.E. 2d 547.

The statute requires a more formal proof of a prior conviction than is required for merely showing lawful custody. The use of only the commitments issued as the result of prior convictions of escape for the purpose of establishing the prior conviction or convictions was error. A transcript of the record of the prior conviction or convictions, i.e., a certified copy of the judgment or judgments, is required by the statute.

We do not consider defendant’s remaining assignments of error since the questions presented probably will not recur upon a new trial.

Because of the error in admitting copies of commitments to establish prior convictions for escape, there must be a

New trial.

Judges Britt and Morris concur.