State v. Davidson

• Citation: 32 S.E. 957,124 N.C. 839
• Court: United States State Supreme Court of North Carolina
• Decision Date: 02 May 1899
• Parties: STATE. v. DAVIDSON.

32 S.E. 957

(124 N.C. 839)

STATE.

v.DAVIDSON.

Supreme Court of North Carolina.

May 2, 1899.

Laboeny—Priob Conviction—Indictment—Sufficiency—Cbiminal Law—Appeal by State.

1. Where defendant was accused of theft of property worth less than $20, an admission of a conviction of a prior larceny will not justify a sentence exceeding a year's imprisonment, under Code, § 1187, unless a former conviction was charged in the indictment, or the evidence showed that the larceny was from the person, or that defendant broke into a dwelling house in the daytime.

2. Code, § 1237, authorizing appeals by the state in certain cases, does not include a ruling of the superior court remanding a case for the imposition of a lesser sentence.

Appeal from superior court, Buncombe county; Starbuck, Judge.

Abe Davidson was prosecuted for larceny. From a conviction, defendant appealed to the superior court, which remanded the case, and the state appeals. Dismissed.

The Attorney General, for the State.

Mark W. Brown, for appellee.

CLARK, J. Acts 1895, c. 285, § 1, provides, "In all cases of larceny where the value of the property stolen does not exceed $20 the punishment shall for the first offence not exceed imprisonment in the penitentiary or common jail, for a longer term than one year." Section 2 excepts from the operation of this act larceny from the person or from a dwelling by breaking and entering in the daytime. Section 3 provides that In all cases of doubtthe jury shall fix in the verdict the value of the property stolen. In the present case the defendant was convicted of larceny in the criminal circuit court of Buncombe upon an indictment charging the value of the property at $1. The indictment did not charge that the defendant had been theretofore convicted of any larceny. The court, however, sentenced the defendant to imprisonment for four years, upon his admission of a former conviction for larceny. On appeal to the superior court, that court adjudged the sentence of the criminal court illegal, and remanded the case, that a proper sentence might be entered, from which judgment the solicitor appealed to this court.

The Code (section 1187) prescribes that, when a second conviction is punished with other or greater punishment than for a first conviction, the first conviction shall be charged in the manner therein set out, and what proof shall be sufficient evidence thereof. When the property stolen is charged of less value than $20, or when charged at more than that value, if it is found by the jury to be of less value than $20, no punishment greater than one year's imprisonment can be inflicted, unless it is charged in the indictment that the defendant has been formerly convicted...