There
is a statement of case on appeal, which it is not necessary
to set forth in full. We quote in part: "The defendant
was indicted under a warrant issued on the 4th day of April
1941, for the violation of the law, by operating a motor
vehicle, to-wit, an automobile truck, upon the public
highways in North Carolina under the influence of
intoxicating liquor or narcotic drugs, and by carrying a
concealed weapon upon his person while off his premises, a
deadly weapon, to-wit, a pistol, and was found guilty before
the Recorder and appealed from the judgment rendered, to the
Superior Court, having been sentenced thirty days in jail, to
be assigned to the roads by the Recorder, and in addition
thereto, at the same term of the Court, to-wit, the May Term
of the Superior Court, the defendant was indicted under a
bill of indictment, found by the Grand Jury at said May Term
of Court, held in the County of New Hanover, at the May Term
1941, for the larceny of a Chevrolet automobile truck, of the
value of $325.00."
The
judgment sets forth the facts, as follows: (#1672) "The
defendant, Oscar Edward Parker, entered a plea of nolo
contendere, which plea the State accepts, of larceny of an
automobile. In June, 1936, the defendant pleaded guilty to
the larceny of an automobile, and by this Judge who is now
presiding was given a sentence of 12 months on the roads
suspended for two years. In May, 1938, he was convicted of
the reckless driving of an automobile, and fined and ordered
to make restitution. In August, 1939, he was convicted of
disorderly conduct and resisting an officer, and given 30
days on the County Farm, by the Recorder's Court. He
appealed, and at the May Term, 1940, in the Superior Court
on this charge, he was fined $10.00 and costs; since the case
in this Court he has been arrested for a violation of the
criminal law in Brunswick County. The Judgment of the Court
is that the defendant be confined in the common jail of New
Hanover for a period of twelve months, and assigned to work
the public roads, under the direction of the State Highway
and Public Works Commission. (#1671) The defendant, Oscar
Edward Parker, entered a plea of nolo contendere to the
operation of an automobile while intoxicated. The Judgment of
the Court is that the defendant Oscar Edward Parker be
confined in the common jail of New Hanover County for a term
of six months, and be assigned to work the public roads under
the direction of the State Highway and Public Works
Commission. It is ordered that this road sentence begin at
the expiration of the road sentence imposed in case
#1672."
Defendant
excepted, assigned errors, as set forth below, and appealed
to the Supreme Court.
CLARKSON
Justice.
The
following are the exceptions and assignments of error made by
defendant: "The defendant says that His Honor erred in
his judgment in sentencing the defendant to work on the
public highway of North Carolina for a period of six months,
as set forth in Exception No. 1. His Honor erred in
sentencing the defendant to work for a period of twelve
months for temporary use of an automobile when no damage or
misconduct, except the use of the automobile, as set forth in
Exception No. 2." Neither one can be sustained.
The
defendant entered a plea of nolo contendere (1) for the
larceny of an automobile, for which he was sentenced for
twelve months; (2) to the operation of an automobile while
intoxicated, for which
he was sentenced six months. As set forth in the judgment,
the defendant was an old offender of the laws of his State
for many serious offences, but mercy was shown him by the
same Judge who sentenced him in this case. The defendant in
the two cases entered a plea of nolo contendere.
In
State v. Burnett, 174 N.C. 796, 797, 93 S.E. 473,
L.R.A.1918A, 955, is the following: "A plea of nolo
contendere, which is still allowed in some courts, is
regarded by some writers as a quasi confession of guilt.
Whether that be true or not, it is equivalent to a plea of
guilty in so far as it gives the court the power to punish.
It seems to be universally held that when the plea is
accepted by the court, sentence is imposed as upon a plea of
guilty. Com. v. Ingersoll, 145 Mass. 381, 14 N.E.
449; 12
Cyc. p. 354." In re Stiers, 204 N.C. 48, 50, 167 S.E.
382.
In
State v. Wilson, 218 N.C. 769, 774, 12 S.E.2d 654
657, it is written: "The Court below did not exceed the
limit of the statute. Within the limit of the statute the
Court is given the discretion to fix the punishment. We see
no abuse of the discretion. As said in State v.
Swindell, 189 N.C. 151, 155, 126 S.E. 417, 419:
'Though the punishment is great, the protection due to
society is greater. The hope is to amend the offender, to
deprive him of the opportunity to do future mischief, and,
above all, an example to deter others."' The value
of the truck...
