State v. Burgess, 68SC51
| Decision Date | 27 March 1968 |
| Docket Number | No. 68SC51,68SC51 |
| Citation | 1 N.C.App. 142,160 S.E.2d 105 |
| Parties | STATE of North Carolina v. Wallace BURGESS. |
| Court | North Carolina Court of Appeals |
Defendant, an indigent, through his court-appointed counsel, appeals to the Court of Appeals.
Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwin, for the State.
Haywood, Denny & Miller, by James H. Johnson, III, Durham, for defendant.
The only assignment of error asserted by the defendant is that the sentences imposed by the court were excessive. He contends that they constitute cruel and unusual punishment contrary to his constitutional rights, and that the court abused its discretion in imposing said sentences.
The first count in the bill of indictment charges the felony of breaking or entering in violation of G.S. § 14--54, and the second count charges the felony of larceny of personal property of the value of over $200. The defendant freely, understandingly and voluntarily pleaded guilty to both counts.
No abuse of discretion is shown. The prison sentences imposed do not exceed the maximum provided by G.S. §§ 14--54 and 14--72. The Supreme Court said in State v. Bruce, 268 N.C. 174, 150 S.E.2d 216, 'We have held in case after case that when the punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense.' See also State v. Greer, 270 N.C. 143, 153 S.E.2d 849.
In an addendum to his brief, defendant contends that the indictment is fatally defective for that it does not properly identify the premises, and he makes a motion in arrest of judgment. The first count in the indictment charges that the defendant did feloniously break and enter 'a certain storehouse, shop, warehouse, dwellinghouse, bankinghouse, countinghouse and building occupied by one Dreame A. Glover * * *.'
We think that this case is clearly distinguishable from the case of State v. Smith, 267 N.C. 755, 148 S.E.2d 844, relied on by the defendant. In the Smith case the court held that the description of the property in the bill of indictment, 'a certain building occupied by one Chatham County Board of Education, a Government corporation,' was fatally defective because under the general description of ownership, it could have been any school building or property owned by the Chatham County Board of Education. Obviously, the Board of Education of Chatham County owns more than one building. The ownership of the personal property in this case is alleged to be in an individual and the...
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State v. Sellers, 254
...stated. State v. Williams, 211 N.C. 569, 190 S.E. 898.' The exact point presented on this appeal was presented in State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105, in an opinion filed 27 March 1968. In that case the defendant was charged in a bill of indictment with the felony of breaking a......
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...Jones situated in Nash County. Upon the authority of State v. Knight, 261 N.C. 17, 134 S.E.2d 101, and the authority of State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105, this assignment of error is overruled. By addendum to defendant's brief, counsel properly concede that this assignment of......
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...road address or some clear description and designation to set the subject premises apart from like and other structures. State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105. Defendants' third assignment of error attacks the denial of their motion to suppress evidence obtained through the use o......