State v. Kelly

• Decision Date: 20 June 1934
• Docket Number: 121.
• Citation: State v. Kelly, 206 N.C. 660, 175 S.E. 294 (N.C. 1934)
• Parties: STATE v. KELLY et al.
• Court: North Carolina Supreme Court

175 S.E. 294

206 N.C. 660

STATE v. KELLY et al.

No. 121.

Supreme Court of North Carolina

June 20, 1934

Appeal from Superior Court, Vance County; Parker, Judge.

Beaufort Kelly alias Bufus Kelly, and another, were convicted of kidnapping and of assault with a deadly weapon, and they appeal.

Remanded for judgment in accordance with opinion.

Word "punishable" within act providing that person convicted of kidnapping shall be punishable by imprisonment for life indicates legislative intention to leave term of imprisonment in discretion of court and to increase maximum term of imprisonment from 20 years to life (Pub. Laws 1933 c. 542).

The defendants were tried on an indictment which was returned by the grand jury, and which is as follows:

"State of North Carolina Superior Court.

Vance County October Term, 1933.

The jurors for the State, upon their oath, present that Beaufort Kelly, alias Bufus Kelly, and Florida Bullock, late of Vance County, on the 23rd day of August, in the year of our Lord 1933, with force and arms, at and in the county aforesaid unlawfully, wilfully and feloniously, forcibly and fraudulently, did kidnap Mary Lena Van Dyke, a female child sixteen years of age, contrary to the statute in such case made and provided, and against the peace and dignity of the State.

And the jurors aforesaid, upon oath aforesaid, do further present that said Beaufort Kelly, alias Bufus Kelly, and said Florida Bullock, afterwards, to-wit: on the day and year aforesaid, at and in the county aforesaid, unlawfully, wilfully and feloniously, did assault, beat and wound the said Mary Lena Van Dyke, a female child sixteen years of age, with deadly weapons, to-wit: a pistol, a knife, and a club, and did then and there inflict serious and permanent injuries, not resulting in death, to the person of the said Mary Lena Van Dyke, to-wit: cutting a deep gash on her left arm and left leg, making it necessary to take four stitches in her arm, and striking her on the stomach with a club, or some heavy, blunt instrument, knocking her down and rendering her unconscious for a period of several hours, causing her to suffer great pain for two weeeks or more-they and each of them, the said Beaufort Kelly, alias Bufus Kelly, and said Florida Bullock then and there being male persons above the age of eighteen years, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

After a motion by the defendant Beaufort Kelly, alias Bufus Kelly, challenging the validity of the indictment, and a motion by said defendant for a change of venue, had been denied by the court, each of the defendants entered a plea of ""Not Guilty" to the indictment, and evidence was offered by both the state and the defendants. All the evidence was submitted by the court to the jury. There was a verdict that each defendant is guilty upon both counts in the indictment. Judgment was rendered as follows:

"The Court is of opinion that life imprisonment is too drastic and severe as a punishment for the facts of this case. Yet, the Court understands the law enacted by the 1933 General Assembly to be such that it has no discretion, and it is the duty of the Court to follow the expressed will and desire of the people as enacted into law by their representatives in the General Assembly.

As to the first count in the bill of indictment, the judgment of the Court is that Beaufort Kelly, alias Bufus Kelly, be imprisoned in the Central Prison at Raleigh for life, to be assigned to do public work under the direction of the State Highway and Public Works Commission.

As to the first count in the bill of indictment, the judgment of the Court is that Florida Bullock be imprisoned in the Central Prison at Raleigh, for life, to be assigned to do public work under the direction of the State Highway and Public Works Commission.

As to the second count in the bill of indictment charging an assault with a deadly weapon, the judgment of the Court is that Beaufort Kelly, alias Bufus Kelly, be imprisoned in the county jail for a term of two years, to be assigned to do public work under the direction of the State Highway and Public Works Commission. Sentence in this case to run concurrently with the sentence pronounced in the first count as to kidnapping.

As to the second count in the bill of indictment, the judgment of the Court is that Florida Bullock be imprisoned in the county jail for a term of two years,...