State v. Lawrence
| Decision Date | 30 June 1879 |
| Citation | 81 N.C. 522 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JOHN LAWRENCE. |
PETITION for a Certiorari filed and granted at June Term, 1879, of THE SUPREME COURT.
The defendant was indicted for larceny and receiving, &c., and tried at spring term, 1876, of COLUMBUS superior court, before McKoy, J.
In his petition for a certiorari, the defendant says he was convicted of horse stealing and sentenced to the penitentiary for twenty years, and in pursuance of the judgment of the court, he has ever since been confined therein; that he is advised the said judgment is contrary to law, in that the first count of the bill of indictment concludes at common law, whereas he was sentenced to twenty years in conformity with the statute, and that there was another count in the bill for receiving said horse, &c.; that there was a general verdict of guilty upon the indictment, it not appearing from the verdict whether he was found guilty of the larceny or the receiving, in which latter case he is advised that he could only be sentenced for ten years; and that the judgment should have been arrested. The petitioner further states that after the trial he was conveyed to the penitentiary where he has ever since remained in close confinement, by reason of which and of his extreme poverty, he has not heretofore been able to invoke the aid of this court to review the record in his case.
Attorney General, for the State .
Messrs. Hinsdale & Devereux, for the defendant .
This case was brought from the superior court of Columbus county by certiorari in nature of a writ of error to review the judgment pronounced upon the defendant in a criminal action against him, tried in that court at spring term, 1876.
The defendant was indicted for stealing a horse, and the bill of indictment contained two counts: first, for stealing the horse; and second, for receiving the same knowing it to have been stolen. The first count concluded at common law and the second against the statute. The jury returned a general verdict of guilty, and the defendant was sentenced to twenty years' imprisonment at hard labor in the state's prison.
He alleges in his petition for the certiorari that he has been kept in the penitentiary in close confinement ever since his conviction, and in consequence thereof together with his extreme poverty he has been unable till now to invoke the aid of this court. He insists through his counsel that the sentence pronounced upon him in the superior court of Columbus county was not authorized by law, and that the judgment below should be reversed; and then, as the certiorari is to be treated as a writ of error, he must be discharged; or, if it shall have the effect to give him a new trial, that he will be entitled to his discharge upon the ground that no person can be put twice in jeopardy of life or limb.
We do not think there is any force or application in these propositions; for the writ of error in criminal cases does not obtain in this state. The only relief which a person convicted in an inferior court can obtain from a court of supervisory jurisdiction, is by appeal or by a writ of certiorari as a substitute therefor, where by any means otherwise than by his own default, he has been deprived of the right of appeal. And as to the second proposition we do not see in the view we take of the case how that question can arise. In no event will the defendant be entitled to his discharge. The practice settled in this state, where a prisoner has been convicted and an illegal sentence pronounced against him and the case is brought to this court by appeal or otherwise, is, to send the case back for such judgment as the law allows. State v. Sue, Conf. Rep., 55; State v. Cook, Phil., 535.
Was the sentence in this case illegal?
The receiver of stolen goods knowing them to be stolen, by section 55, section 32, of Battle's Revisal, is punishable as one convicted of larceny. By section 25 of the same chapter, the distinction between grand and petty larceny is abolished, and the offence of felonious stealing is to be punished as petty larceny. And petty larceny by section 29 of the same chapter is punished by imprisonment in the state's prison (or county jail) for not less than four months nor more than ten years. So that, larceny...
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