State v. Grant, 292
| Decision Date | 15 April 1964 |
| Docket Number | No. 292,292 |
| Parties | STATE, v. Kenneth GRANT. |
| Court | North Carolina Supreme Court |
T. W. Bruton, Atty. Gen., Theodore C. Brown, Jr., Staff Atty., Raleigh, for the State.
Turner & Harrison, Kinston, for petitioner.
The question presented by the writ is one of law. A sentence of seven to nine years upon a bill of indictment for an attempt to break and enter is not authorized. The crime charged is a misdemeanor. The maximum punishment for the offense is imprisonment for two years. The commitment issued by the Assistant Clerk of the Greene County Superior Court states, 'The commitment was for breaking and entering.' The commitment must give way to the basic document--the indictment--which charges only an attempt to break and enter.
Ordinarily, when a judgment is imposed in excess of that permitted by law, the cause is remanded for a proper judgment. In this case the maximum sentence allowed has already been served. To send the case back for entry of a proper judgment would serve no useful purpose. The judgment in case No. 1377 entered in Greene County should be corrected by striking the term of imprisonment, 'seven to nine years,' and substituting, 'two years.'
The consecutive sentences subsequently imposed will fall into place on the basis of this correction. The cause is remanded to the Superior Court of Greene County for the correction of its record as here indicated. Certificate of the correction will be sent to the Prison Department.
Remanded.
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State v. Hageman, 206A82
...of attempted receipt of stolen property include secrecy, malice, deceit or intent to defraud as necessary elements. In State v. Grant, 261 N.C. 652, 135 S.E.2d 666 (1964), we held that an attempt to break and enter was a misdemeanor punishable under G.S. 14-3(a). Certainly the crime of atte......
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State v. Sullivan
...v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956). The State concedes that it cannot distinguish the instant case from State v. Grant, 261 N.C. 652, 135 S.E.2d 666 (1964), which held that an attempt to break or enter was a misdemeanor. We hold that the charge of attempting to break into a coin......
- State v. Wheeler, 145