State v. Pearce, No. 749

Docket NºNo. 749
Citation268 N.C. 707, 151 S.E.2d 571
Case DateDecember 14, 1966
CourtUnited States State Supreme Court of North Carolina

Page 571

151 S.E.2d 571
268 N.C. 707
STATE,
v.
Clifton A. PEARCE.
No. 749.
Supreme Court of North Carolina.
Dec. 14, 1966.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

Wade H. Penny, Jr., Durham, for defendant appellant.

PER CURIAM:

The evidence adduced at the trial in 1961 and considered by Judge Johnson at the Post Conviction Hearing is reviewed in this Court's opinion reported in 266 N.C. 234, 145 S.E.2d 918. The evidence on the new trial was not essentially different. It was sufficient to survive the motion to dismiss and to sustain the verdict.

During the new trial the court sustained the solicitor's objection to certain impeaching questions asked the State's witness, Laura Mae Lassiter. However, counsel failed to insert in the record what the witness would have testified to if permitted to answer. In the absence of such answer the Court may only guess whether its exclusion was prejudicial. The record fails to make a showing of prejudice. Likewise prejudice is not shown by the court's exclusion of two love letters written by the same State's witness to the defendant while he was in jail awaiting the second trial. She was examined about the contents of the letters which she admitted writing. These did not tend to impeach her testimony at the new trial. One of the letters contained a statement reflecting on the conduct of the prosecutrix. Prejudice in the exclusion is not shown.

After verdict, the court tendered this judgment:

'It is the intention of this Court to give the defendant a sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined in the State's Prison for a period of eight years.'

The defendant excepted to the judgment, contending that on the first trial Judge Williams imposed a sentence of 12--15 years; that the evidence then was essentially the same as that produced at the trial before Judge McLaughlin, who should not have increased the punishment over the minimum imposed by Judge Williams; that credit for the time served should be applied on the sentence of 12 years. Otherwise the defendant will be penalized by his appeal.

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20 practice notes
  • Patton v. State of North Carolina, No. 11005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 14, 1967
    ...State v. Williams, 261 N.C. 172, 134 S.E.2d 163 (1964). 3 Our conclusion is strengthened by the recent decision in State v. Pearce, 268 N.C. 707, 151 S.E.2d 571 (1966), decided since the District Court's action. In that case, the defendant's sentence was increased following his second convi......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...the parties agree amounted to a longer total sentence than that originally imposed.1 The conviction and sentence were affirmed on appeal. 268 N.C. 707, 151 S.E.2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern Dis- Page 714 trict of ......
  • Hardwick v. Doolittle, No. 76-1065
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 29, 1977
    ...--------------- 1 See State v. Pearce, 266 N.C. 234, 236, 145 S.E.2d 918, 920 (1966) (Judge Williams at first trial); State v. Pearce, 268 N.C. 707, 708, 151 S.E.2d 571, 572 (1966) (Judge McLaughlin at second trial). Justice Marshall drew attention to this fact in his dissenting opinion in ......
  • State v. Sparrow
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 13, 1970
    ...to a longer prison sentence than the 12-year minimum originally imposed. The second conviction and sentence were upheld by this Court, 268 N.C. 707, 151 S.E.2d 571. Pearce then instituted habeas corpus proceedings in the United States District Court for the Eastern District of North Carolin......
  • Request a trial to view additional results
20 cases
  • Patton v. State of North Carolina, No. 11005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 14, 1967
    ...State v. Williams, 261 N.C. 172, 134 S.E.2d 163 (1964). 3 Our conclusion is strengthened by the recent decision in State v. Pearce, 268 N.C. 707, 151 S.E.2d 571 (1966), decided since the District Court's action. In that case, the defendant's sentence was increased following his second convi......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...the parties agree amounted to a longer total sentence than that originally imposed.1 The conviction and sentence were affirmed on appeal. 268 N.C. 707, 151 S.E.2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern Dis- Page 714 trict of ......
  • Hardwick v. Doolittle, No. 76-1065
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 29, 1977
    ...--------------- 1 See State v. Pearce, 266 N.C. 234, 236, 145 S.E.2d 918, 920 (1966) (Judge Williams at first trial); State v. Pearce, 268 N.C. 707, 708, 151 S.E.2d 571, 572 (1966) (Judge McLaughlin at second trial). Justice Marshall drew attention to this fact in his dissenting opinion in ......
  • State v. Sparrow
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 13, 1970
    ...to a longer prison sentence than the 12-year minimum originally imposed. The second conviction and sentence were upheld by this Court, 268 N.C. 707, 151 S.E.2d 571. Pearce then instituted habeas corpus proceedings in the United States District Court for the Eastern District of North Carolin......
  • Request a trial to view additional results

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