State v. Stonestreet
| Decision Date | 02 November 1955 |
| Docket Number | No. 361,361 |
| Citation | 89 S.E.2d 734,243 N.C. 28 |
| Parties | STATE, v. Edward C. STONESTREET. |
| Court | North Carolina Supreme Court |
Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant, appellant.
Atty. Gen. Wm. Rodman, Jr., and Asst. Atty. Gen. Harry W. McGalliard for the State.
First, we consider the conviction for resisting arrest as charged. While not argued in appellant's brief, we are constrained to hold that the motion in arrest of judgment should have been allowed. If the offense is not sufficiently charged in the indictment, this Court, ex mero motu, will arrest the judgment. State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Watkins, 101 N.C. 702, 8 S.E. 346. The indictment is fatally defective in that it does not allege all the facts necessary to constitute an offense under G.S. § 14-223. Specifically, it fails to charge the official duty the designated officer was discharging or attempting to discharge. State v. Harvey, 242 N.C. 111, 86 S.E.2d 793, and cases cited. As to the essentials of an indictment charging bribery, G.S. § 14-218, see State v. Greer, 238 N.C. 325, 77 S.E.2d 917.
When an indictment charges separately the unlawful possession and unlawful transportation of intoxicating liquor, a separate judgment may be pronounced on each count. State v. Chavis, 232 N.C. 83, 59 S.E.2d 348. Here the defendant pleaded guilty to unlawful possession and to unlawful transportation of intoxicating liquor. Even so, the plea had significance only to the extent it was responsive to the charge laid in the indictment. The indictment does not charge unlawful possession of intoxicating liquor. Our statutes make no reference to 'receiving' of intoxicating liquor. Possibly this word was borrowed from another jurisdiction. Hence, this Court, ex mero motu, arrests the judgment predicated on defendant's plea of guilty of unlawful possession of intoxicating liquor.
The indictment did properly charge unlawful transportation of intoxicating liquor. Defendant's plea of guilty was responsive thereto. The judgment pronounced therein is valid and must be upheld.
Separate judgments, each imposing a sentence of twelve months to the same place of confinement, were pronounced. Each judgment is complete within itself. As a matter of law, the sentences run concurrently. In re Parker, 225 N.C. 369, 35 S.E.2d 169. Compare: In re Smith, 235 N.C. 169. 69 S.E.2d 174; In re Bentley [State v. Bentley], 240 N.C. 112, 81 S.E.2d 206.
Where two or more indictments or counts are consolidated for the purpose of judgment, and a single judgment is pronounced thereon, even though the plea of guilty or conviction on one is sufficient to support the judgment and the trial thereon is free from error, the award of a new trial on the other indictment(s) or count(s) requires that the cause be remanded for proper judgment on the valid count. 'Presumably this (the single judgment) was based upon consideration of guilt on both charges.' Devin, J., later C. J., in State v. Camel, 230 N.C. 426, 53 S.E.2d 313, 315; also, see State v. Braxton, 230 N.C. 312, 52 S.E.2d 895. But the rule is otherwise when, as here, separate judgments, each complete within itself, are pronounced on separate indictments or counts. In such case, a valid judgment pronounced on a plea of guilty to a valid count in a bill of indictment will be upheld. State v. Thorne, supra; State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9.
Defendant urges that this Court set aside all judgments pronounced because of the comment made by the trial judge to him and to his counsel...
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State v. Williams
...Moschoures, 214 N.C. 321, 199 S.E. 92 (Sup.Ct.1938); State v. Chavis, 232 N.C. 83, 59 S.E.2d 348 (Sup.Ct.1950); State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734 (Sup.Ct.1955). In all three cases the courts held that double jeopardy was not projected in prosecutions for possession and also f......
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Lineberger v. N.C. Dept. of Correction
...is convicted of two or more counts, the court may consolidate the offenses and impose a single judgment. See State v. Stonestreet, 243 N.C. 28, 31, 89 S.E.2d 734, 737 (1955). Under a consolidated sentence, if one of the counts upon which the conviction is based is set aside, the entire judg......
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State v. Cameron
...legislative distinction and intent in denouncing each as a separate punishable offense.' Chavis was reaffirmed in State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734 (1955), in which Justice Bobbitt (now Chief Justice) said: 'When an indictment charges separately the unlawful possession and un......
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State v. Cooke
...bills. The record discloses the fatal variance. It is our duty to note it. State v. Scott, 237 N.C. 432, 75 S.E.2d 154; State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734; State v. Nugent (Strickland), 243 N.C. 100, 89 S.E.2d 781. Defendants may, of course, now be tried under the original war......