State v. Satterwhite

• Decision Date: 14 December 1921
• Docket Number: 533.
• Parties: STATE v. SATTERWHITE.
• Court: North Carolina Supreme Court

109 S.E. 862

182 N.C. 892

STATE v. SATTERWHITE.

No. 533.

Supreme Court of North Carolina

December 14, 1921

Appeal from Superior Court, Buncombe County; Long, Judge.

Aleck Satterwhite was convicted of selling spirituous liquors, and he appeals. Appeal dismissed.

The defendant was convicted and sentenced for selling spirituous liquors, and appealed. Said appeal not having been docketed here at the spring term, as required, the Attorney General moves to dismiss.

A new trial will not be granted merely because of a defective sentence, but the case will be remanded for imposition of a correct sentence, whether it came to the Supreme Court by appeal, on habeas corpus, or by certiorari.

Philip C. Cocke, of Asheville, for appellant.

James S. Manning,. Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CLARK C.J.

This case was tried at September term, 1920, of Buncombe. Not having been docketed here till this term, the motion of the Attorney General to dismiss should be allowed as a matter of course. At his option, the case might have been docketed and dismissed, under rule 17 (66 S.E. vii), at last term.

The only point, however, raised by the defendant in his brief is:

"Appellant assigns error that the judgment imposed is uncertain indefinite, conditional, alternative, and contingent in respect to the time the said judgment shall go into effect and be executed upon the person of the defendant."

If the case was properly before us, we should have to hold against the appellant. The record sets out that--

"When the solicitor prayed judgment in this case he informed the court that this defendant has, since 1914, been under indictment in Asheville in different courts, in about 40 cases on the criminal docket, acquitted in some and convicted in others. This information is put on the record in explanation of the court's sentence and made a part of it. The sentence of the court is that he be imprisoned in the county jail for 18 months and assigned to work on the public roads of Buncombe county. It also appearing to the court that he has been sentenced by another judge, at a previous term of court, for housebreaking for 18 months, and the case is still in the Supreme Court, this sentence is made so that it shall not conflict with the other sentence if the same is approved. In other words, this sentence is to begin at the expiration of the other sentence. If the sentence in the other case is reversed or there is a new trial, this sentence is to begin first and become effective immediately."

The statement of the case on appeal was settled by the judge November 18, 1920. The defendant having been pardoned by the Governor (Bickett) in the other case pending in this court from a sentence of 18 months for housebreaking, the defendant's counsel contends that the sentence in the present case is void, and that the defendant will be entitled to a new trial.

If the sentence imposed were defective, there being no other error assigned, the defendant, though he had prosecuted his appeal in time, would not have been entitled to a new trial, but the case would have been remanded that a correct sentence might be imposed (State v. Lawrence, 81 N.C. 522; State v. Queen, 91 N.C. 660; State v Jones, 101 N.C. 724; 8 S.E. 147); and this irrespective of whether the case came to this court by appeal from the judgment, or on a habeas corpus, or by certiorari (State v. Walters, 97 N.C. 490, 2 S.E. 539, 2 Am. St. Rep. 310; State v. Crowell, 116 N.C. 1059, 21 S.E. 502; State v. Austin, 121 N.C. 622, 28 S.E. 361).

But there is no defect in the judgment as entered. In State v. Hamby, 126 N.C. 1067, 35 S.E. 614, it was held:

That a sentence ...