State v. Brinkley
| Decision Date | 18 May 1927 |
| Docket Number | (No. 481.) |
| Citation | 138 S.E. 138 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. BRINKLEY. |
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Convicted—Conviction.]
Appeal from Superior Court, Cabarrus County; Stack, Judge.
Thomas Brinkley, Jr., was convicted of prostitution in the first degree, and he appeals. No error.
See, also, 191 N. C. 702, 132 S. E. 796.
The defendant was indicted for seduction under C. S. § 4339, and tendered a general plea of guilty of prostitution which was accepted by the state. The judge then heard the testimony of several witnesses and found as a fact that the defendant was guilty of prostitution in the first degree. It was thereupon adjudged that the defendant be imprisoned and assigned to work on the public roads of Cabarrus county for a term of 18 months, and he excepted and appealed.
Caldwell & Caldwell and Hartsell & Hart-sell, of Concord, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
ADAMS, J. [1] The appeal presents three contentions: (1) That the judge had no right to determine from the testimony of witnesses that the defendant was guilty of prostitution in the first degree; (2) that the prosecution is barred by the statute of limitations; (3) that the judgment should be arrested.
The crime of prostitution is divided into two degrees, and the punishment for each is prescribled by statute. C. S. §§ 4361, 4362. For the first degree the offender shall be subject to imprisonment for not less than one nor more than three years, and for the second to imprisonment for not more than one year. When the degree of guilt has been properly ascertained, the judge doubtless has the right to hear testimony for the purpose of fixing the term of imprisonment within the limits of the statute; but this right does not extend to or include the finding by the judge of the degree of the offender's guilt. Whether the determination of the degree is the province of the judge or that of the jury is a question we need not now discuss; for the defendant's general submission, without pointing out or specifying the degree of his guilt, is sufficiently comprehensive to include the first degree. State v. Barnes, 122 N. C. 1031, 29 S. E. 381; State v. Lee, 192 N. C. 225, 134 S. E. 458.
The second point made by the defendant is without merit. In State v. Carpenter, 74 N. C. 230, it is said:
"We believe a practice has grown up under which the state does not usually, in the trial of misdemeanors, prove, in the first instance, venue, time, etc., unless some point be made thereon."
The court announced in State v. Holder, 133 N. C. 710, 45 S. E. 862, that, if the statute of limitations is relied on, it should be brought to the attention of the judge, and in State v. Francis, 157 N. C. 612, 72 S. E. 1041, that, if the state fail to prove that a misdemeanor was committed within two years, the defendant should take advantage of the failure by a request for instructions. That the prosecution is barred may be shown under the general plea, and, if it is barred,...
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...if not asserted sometime before a verdict is rendered. (Commonwealth v. Ashe (1944) 154 Pa.Super. 397, 36 A.2d 249; State v. Brinkley (1927) 193 N.C. 747, 138 S.E. 138; United States v. Taylor (2d Cir. 1953) 207 F.2d 437; see Askins v. United States (1958) 102 U.S.App.D.C. 198, 251 F.2d 909......
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State v. Pearson, 858 S.W.2d 879
...may be waived by either the defendant's failure to raise it in a pre-trial motion or entry of a guilty plea. See e.g., State v. Brinkley, 193 N.C. 747, 138 S.E. 138 (1927) (defendant who pled guilty may not assert statute of limitations on appeal); Commonwealth v. Darush, 501 Pa. 15, 459 A.......
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State v. Meadows, 497
...Am.Jur.2d, Criminal Law, § 186; 22 C.J.S. Criminal Law § 287c, p. 753. A plea of guilty is 'equivalent to a conviction.' State v. Brinkley, 193 N.C. 747, 138 S.E. 138; Harrell v. Scheidt, Comr. of Motor Vehicles, 243 N.C. 735, 92 S.E.2d 182; State v. Stone, 245 N.C. 42, 95 S.E.2d 77. The pl......
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Harrell v. Scheidt, 235
...the mandatory requirements of the statutes by the Department. A plea of guilty is 'equivalent to a conviction.' State v. Brinkley, 193 N.C. 747, 138 S.E. 138, 139. In State v. Robinson, 224 N.C. 412, 30 S.E.2d 320, 321, this Court, quoting 14 Am.Jur., Criminal Law, par. 272, p. 952, said: "......