State v. Robinson

• Citation: 30 S.E.2d 320,224 N.C. 412
• Decision Date: 02 June 1944
• Docket Number: 724.
• Parties: STATE v. ROBINSON et al.
• Court: North Carolina Supreme Court

30 S.E.2d 320

224 N.C. 412

STATE v. ROBINSON et al.

No. 724.

Supreme Court of North Carolina

June 2, 1944

The defendants were brought to trial before the Municipal Court of the City of Winston-Salem upon separate warrants, each of which charged that the defendant, 'did unlawfully and wilfully promote, set on foot, carry on publicly or privately a certain lottery where a game of chance is played, against the Statute' etc. The defendant Willie Powell Robinson plead not guilty but was convicted and sentenced by the Recorder to six months in jail to be worked on the roads under control of the State Highway and Public Works Commission. The defendant John Henry Benson entered a plea of nolo contendere and was sentenced by the recorder to six months in jail, to be worked on the roads under control of the State Highway and Public Works Commission. From their respective sentences defendants appealed to the Superior Court.

The cases came on for trial at the 10 January Term, 1944, of Superior Court of Forsyth, when and where each of the defendants entered a plea of guilty. Whereupon the Court pronounced judgment that the defendant Benson 'be confined in the common jail of Forsyth County for a period of twenty (20) months and assigned to work on the public roads under the control and supervision of the State Highway and Public Works Commission', and that the defendant Robinson 'be confined in the common jail of Forsyth County for a period of twenty-two (22) months and assigned to work on the public roads of North Carolina under the control and supervision of the State Highway and Public Works Commission.'

From the sentences pronounced and judgments entered the defendants appealed to the Supreme Court, assigning errors.

Harry M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Phin Horton, Jr., A. B. Cummings, and Richmond Rucker, all of Winston-Salem, for defendants, appellants.

SCHENCK Justice.

It appears that the warrants upon which these defendants were brought to trial are practically in the words of G.S. § 14-290, which, in part, reads: 'If any person shall open set on foot, carry on, promote, make or draw, publicly or privately, a lottery, by whatever name, style or title the same may be denominated or known; * * * shall be guilty of a misdemeanor, and shall be fined not exceeding two thousand dollars or imprisoned not exceeding six months, or both, in the discretion of the court. * * *'

Since the sentences imposed below of imprisonment of twenty and twenty-two months, respectively, are in excess of the limitation of punishment set forth in the statute, not exceeding six months imprisonment, there...