State v. Smith
| Decision Date | 24 October 1917 |
| Docket Number | 89. |
| Citation | 93 S.E. 910,174 N.C. 804 |
| Parties | STATE v. SMITH. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County.
Joe Smith, indicted for secret assault, pleaded guilty of assault with a deadly weapon, and was sentenced to four years' imprisonment in the penitentiary, and he appeals. Error.
Defendant was indicted for secret assault, and at the conclusion of the state's evidence tendered a plea of guilty of assault with a deadly weapon, which plea was accepted by the state. The evidence tended to show an aggravated assault with a deadly weapon, firing twice with a pistol at the prosecutor one John W. Howell, and at close range, inflicting a slight wound in the hand. The court sentenced defendant to four years' confinement in the penitentiary, and defendant excepted and appealed.
Langston Allen & Taylor, of Goldsboro, for appellant.
The Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State.
The provision of our Constitution (article 1, § 14) restraining in general terms the "infliction of cruel and unusual punishments," has been considered with us more especially as an admonition to the judiciary in the imposition of sentences recognized and established by the law for the punishment of given offenses and to the extent that the same are discretionary with the courts, and, while there is decided intimation that in extraordinary and exceptional instances it may be held to affect legislative enactments there is no such question presented in this record, for the statutes applicable do not come under the condemnation of any such principle, and the question presented must be determined by correct interpretation of the legislation controlling the subject. State v. Woodlief, 172 N.C. 885, 90 S.E. 137; State v. James Francis, 157 N.C. 612, 72 S.E. 1041; State v. Manuel, 20 N.C. 144. And see an interesting case on the general question in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann. Cas. 705, holding certain provisions of the Philippine Criminal Code void, as contrary to the Philippine Bill of Rights, forbidding cruel and unusual punishments.
Considering the case in the aspect suggested, our statute on crimes (Revisal, § 3292) defines as a felony a crime that may be punished by imprisonment in the penitentiary. Section 2, art. 6, of our Constitution, provides that any one convicted or confessing himself guilty of a crime that can be so punished shall forfeit his right to vote and shall only be restored to citizenship, etc., as provided by law. A punishment involving consequences of that character should not be imposed but by express provision of law, and we are of opinion that there is now no law in this state which justifies the imposition of such a sentence for four years, or other term, for the offense of which the defendant stands convicted--an assault with a deadly weapon. The sections in our Revisal which may be considered as bearing more directly on the subject are as follows:
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