State v. Lawrence, 331

• Decision Date: 07 April 1965
• Docket Number: No. 331,331
• Citation: 264 N.C. 220,141 S.E.2d 264
• Parties: STATE, v. Benjamin Franklin LAWRENCE.
• Court: North Carolina Supreme Court

Page 264

141 S.E.2d 264

264 N.C. 220

STATE, v. Benjamin Franklin LAWRENCE.

No. 331.

Supreme Court of North Carolina.

April 7, 1965.

Herbert B. Hulse, Goldsboro, for petitioner.

T. Wade Bruton, Atty. Gen., and Theodore C. Brown, Jr., Asst. Atty. Gen., for respondent.

PER CURIAM.

Petitioner was tried and convicted in the Recorder's Court of Edgecombe County on certain charges of traffic law violations, misdemeanors, and in consequence judgment was entered imposing a one-year prison sentence. On 18 August 1961 he was committed to the State Prison Unit in Nash County. He escaped on 28 August 1961 and was returned to custody on 24 October 1963; he was then transferred to the Wayne County Prison Unit.

Petitioner was tried in Nash County Recorder's Court on 16 December 1963 for said escape and was given a six-months sentence. He escaped from the Wayne County Prison Unit on 17 December 1963 and was apprehended the same day.

Petitioner was put on trial in the County Court of Wayne County on 24 December 1963 upon a warrant, issued by the Clerk of said court, charging:

'On or about the 17th day of December 1963 Benjamin Franklin Lawrence did unlawfully and wilfully escaping (sic) North Carolina Prison Department, Second Offense.'

He entered a plea of guilty, and the judge imposed a 60-day prison sentence--'This sentence to commence at expiration of sentence now serving.' Commitment was issued 30 December 1963. On 31 December 1963 the judge revoked the commitment, vacated the judgment, and made an entry finding probable cause and binding petitioner over to the superior court. Plaintiff was arraigned in the Wayne County Superior Court at the January 1964 Session on the following indictment:

'Benjamin Franklin Lawrence * * * on the 17 day of December in the year of our Lord one thousand nine hundred and sixty-three, with force and arms, at and in the County aforesaid (Wayne), did while in custody of the State Prison System and serving a sentence imposed upon conviction of a misdemeanor, did (sic) wilfully and unlawfully escape from the State Prison System, the escape being his second offense, to wit: by having heretofore been convicted of escaping prison while serving a sentence imposed by the Nash County Recorder's Court * * *.'

Before pleading, petitioner moved to quash the bill. The motion was overruled, and petitioner entered a plea of guilty. A two-year prison sentence was imposed.

Petitioner thereafter filed an application for writ of habeas corpus. Counsel was appointed to represent him. The application was considered as a petition for postconviction review (G.S., Ch. 15, Art. 22). After a full hearing, Parker, J., found facts in substance as above set out, denied relief and dismissed the petition.

Petitioner contends that his constitutional rights were violated at the trial in Wayne County Superior Court, January 1964 Session, in that he was a second time put in jeopardy. We agree.

If a prisoner, serving a sentence in the State Prison System upon conviction of a misdemeanor, escapes imprisonment, he shall for the first offense be guilty of a misdemeanor. If he escapes a second or subsequent time, he shall be guilty of a felony. G.S. § 148-45. However, a felony conviction for such second or subsequent offense is not permissible, and punishment therefor may not be imposed, unless the indictment alleges facts showing that the offense charged is a second offense. State v. Miller, 237 N.C. 427, 75 S.E.2d 242. The warrant or indictment must state the time and place accused was convicted of the prior offense. G.S. § 15-147; State v. Morgan, 263 N.C. 400, 139 S.E.2d 708; State v. Powell, 254 N.C. 231, 118 S.E.2d 617. Even if the warrant or indictment is proper, the entire case does not stand or fall on proof that there was a prior conviction. State v. Stone, 245 N.C. 42, 95 S.E.2d 77. The accused may be convicted of the specific offense charged, or he may be convicted as in case of a second offense. The verdict must spell out (1) whether defendant is guilty of the specific violation charged and, if so, (2) whether he was convicted of a prior violation of such offense charged. State v. Powell, supra; State v. Cole, 241 N.C. 576, 86 S.E.2d 203. In other words, the accused may, on a charge such as that preferred against petitioner, be convicted or plead guilty to the specific violation charged--a misdemeanor--or he may be convicted or plead guilty as in case of a second offense--a felony. Punishment is in accordance with the conviction or plea. State v. Stone, supra.

The warrant upon which petitioner was tried in the County Court of Wayne County does not properly charge a felony. The word 'feloniously' does not appear in the warrant. State v. Whaley, 262 N.C. 536, 138 S.E.2d 138. Moreover, the mere words 'second offense' are not sufficient allegation of facts to charge the felony--time and place of conviction of the prior offense must be alleged. G.S. § 15-147; State v. Morgan, supra. The warrant could have been amended in the County Court, but it was not. The legal effect of the warrant is to charge a misdemeanor. Defendant's plea was in effect a plea of guilty to the misdemeanor (the offense...