State v. Foster, 496

Decision Date08 November 1967
Docket NumberNo. 496,496
Citation271 N.C. 727,157 S.E.2d 542
CourtNorth Carolina Supreme Court
PartiesSTATE, v. Wallace Elee FOSTER.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. George A. Goodwyn, and Millard R. Rich, for the State.

R. L. Brown, Jr., Albemarle, for defendant appellant.

PER CURIAM.

Defendant's first assignment of error reads: 'The court erred in imposing the maximum statutory sentence of two years upon the misdemeanor charge of larceny, thus depriving the defendant of the benefit of that time in which he was imprisoned in the State Prison from March 31, 1966 (date of commitment) to August 25, 1966, the date on which he was ordered by the court to be returned to the sheriff of Stanly County.' The record shows this: On 31 March 1966 the office of the clerk of the Superior Court of Stanly County issued a commitment ordering the defendant to be committed to the State's prison to serve the sentences imposed at the March 1966 Session of court. Pursuant to this commitment, the defendant remained in the North Carolina prison system from 31 March 1966 through 25 August 1966, at which time Judge McConnell ordered the defendant to be returned to Stanly County and to be released on bond pending the result of his appeal to the Supreme Court.

It is apparent that when Judge Johnston sentenced defendant to serve the maximum two-year sentence for the larceny of the electric battery charger, he did not give him credit for the time served from 31 March 1966 through 25 August 1966. The Attorney General of North Carolina takes the position that the defendant should be given credit for the time served from 31 March 1966 through 25 August 1966. While the facts of this case are not on all-fours with State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, and Williams v. State, 269 N.C. 301, 152 S.E.2d 111, we think that those cases are highly apposite, and the principles there announced should control in this case. This assignment of error is sustained. The Prison Department is ordered forthwith to give this defendant credit on the two-year sentence imposed for the time that he served from 31 March 1966 through 25 August 1966.

Defendant assigns as error that the prison sentence of two years for larceny of the electric battery charger was cruel and unusual punishment and 'within the prohibition of the Eighth Amendment to the Federal Constitution which applies to the States through the due process clause of the Fourteenth Amendment.' Defendant in his brief states: 'In view...

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6 cases
  • State v. Stafford, 495
    • United States
    • United States State Supreme Court of North Carolina
    • December 9, 1968
    ...time served under the two sentences, however, may not exceed the maximum sentence authorized by the applicable statute. State v. Foster, 271 N.C. 727, 157 S.E.2d 542; Williams v. State, 269 N.C. 301, 152 S.E.2d 111; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633; State v. Slade, supra. Furth......
  • State v. Virgil
    • United States
    • United States State Supreme Court of North Carolina
    • January 30, 1970
    ...as punishment for the conduct charged in the bill of indictment.' Accord Williams v. State, 269 N.C. 301, 152 S.E.2d 111; State v. Foster, 271 N.C. 727, 157 S.E.2d 542; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; North Carolina v. Pearce, 3......
  • State v. Walker
    • United States
    • United States State Supreme Court of North Carolina
    • December 16, 1970
    ...authorities are in accord with the views above expressed: Williams v. State, 269 N.C. 301, 152 S.E.2d 111 (1967); State v. Foster, 271 N.C. 727, 157 S.E.2d 542 (1967); State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968); North Carolina......
  • State v. Powell, 6921SC416
    • United States
    • Court of Appeal of North Carolina (US)
    • August 27, 1969
    ...N.C. 448, 156 S.E.2d 854; State v. Lovelace, 271 N.C. 593, 157 S.E.2d 81; State v. Yoes, 271 N.C. 616, 157 S.E.2d 386; State v. Foster, 271 N.C. 727, 157 S.E.2d 542; State v. Pardon, 272 N.C. 72, 157 S.E.2d 698; State v. Wright, 272 N.C. 264, 158 S.E.2d 50; State v. Bethea, 272 N.C. 521, 15......
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