State v. Ray
| Decision Date | 05 January 1938 |
| Docket Number | 721. |
| Citation | 194 S.E. 472,212 N.C. 748 |
| Parties | STATE v. RAY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Orange County; Walter J. Bone, Judge.
J Clyde Ray, in a prosecution for embezzlement, tendered a plea of guilty of forcible trespass which was accepted by the State, and, from a judgment that execution and commitment be issued, defendant appeals.
Affirmed.
Where defendant had been represented by counsel, it would be presumed on appeal that his rights were protected.
The defendant, under indictment for embezzlement, at the August term, 1935, of the superior court of Orange county, tendered a plea of guilty of forcible trespass which was accepted by the State. Henry A. Grady, judge presiding, thereupon entered order "that prayer for judgment be continued on condition that defendant pay into the Clerk's office for the benefit of the heirs of John Malone, deceased, the sum of $500 at the August Term, 1936, $500 at the August Term, 1937 $2,000 at the August Term, 1938, and one-third costs at each August Term for three years."
At the August term, 1936, Clawson Williams, judge presiding, entered an order in which it was recited that it was admitted by the defendant in open court that he had not paid the money as required by the order of Judge Grady at the August term 1935; that the money he was required to repay represented funds he had wrongfully withheld and expended; and that he voluntarily consented that his license to practice law be revoked; and it was thereupon adjudged that defendant be sentenced to jail for not less than twenty-three nor more than twenty-four months, the prison sentence to be suspended upon condition that defendant pay into the office of the clerk $500 and one-third costs on or before September 7, 1936, and $500 and one-third costs on or before August term, 1937, and $2,000 and one-third costs on or before August term, 1938; capias and commitment to issue upon breach of the conditions named, upon motion of the solicitor and finding by the judge holding the courts of the district that defendant had not complied with the conditions on which the sentence was suspended.
At the August term, 1937, upon motion of the solicitor, Walter J. Bone, judge presiding, made the following findings: "Upon the evidence and the admission of the defendant in open court, through his counsel, the court finds as a fact that the terms and conditions, upon which the sentence heretofore imposed at the August Term, 1936, of this court was suspended, have been breached in that the defendant has failed to pay into the office of the Clerk of the Superior Court of Orange County the sum of $500 and one-third of costs which he was required by the terms of the aforesaid judgment and sentence to pay." It was thereupon adjudged that execution and commitment be issued on the judgment rendered at the August term, 1936, and that defendant be committed to serve said sentence.
From the judgment of Bone, J., at August term, 1937, defendant appealed.
R. O. Everett, of Durham, and S. M. Gattis, Jr., of Hillsboro, for appellant.
A. A. F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.
The records of this court disclose that the appellant was twice tried upon bills of indictment charging embezzlement, and that in each instance, upon appeal, a new trial was awarded. State v. Ray, 206 N.C. 736, 175 S.E. 109; State v. Ray, 207 N.C. 642, 178 S.E. 224. Subsequently, it appears that at the August term, 1935, the defendant, with the consent of...
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State v. Pennell, 371PA13.
...because the original indictment for the offense was fatally defective. Relying predominantly on this Court's holding in State v. Ray, 212 N.C. 748, 194 S.E. 472 (1938), the Court of Appeals held that defendant's appeal was proper, determined that the original indictment was defective, and a......