State v. Sullivan

• Decision Date: 24 September 1947
• Docket Number: 73
• Citation: 44 S.E.2d 81,227 N.C. 680
• Parties: STATE v. SULLIVAN.
• Court: North Carolina Supreme Court

44 S.E.2d 81

227 N.C. 680

STATE v. SULLIVAN.

No. 73

Supreme Court of North Carolina

September 24, 1947

Harry McMullan, Atty. Gen., and T. W. Bruton Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for State.

Don C. Young, of Asheville, for defendant

DEVIN Justice.

Claude Sullivan, aged sixteen years, was charged with breaking and entering a store in Asheville, and at December term, 1945 pleaded nolo contendere. The presiding judge sentenced him to State's Prison for not less than one nor more than two years, with the following added provision: 'Capias and commitment to the foregoing sentence shall not issue for term of 3 years if the defendant is committed to the Eastern Carolina Training School for Boys, and shall remain of good behavior without attempt to escape therefrom and obedient to the rules and regulations of said institution until such time as he shall be discharged according to law. Upon violation of the rules and regulations of the institution or escape from the institution, capias to issue immediately for the defendant and the above sentence to go into effect.'

The defendant thereafter was arrested by the police in Asheville December 11, 1946, and at February term, 1947, the presiding judge, on the solicitor's motion for commitment, found that after defendant entered the Training School pursuant to the original judgment he escaped and left without permission that he was returned to the Training School and remained six weeks, and again escaped without permission. Thereupon the court found that defendant had violated the conditions of the judgment, allowed the solicitor's motion, and ordered defendant committed to State's Prison. The defendant excepted and appealed.

Passing the questions raised by the defendant's objections to the form and legal effect of the original judgment, we think the evidence presented to the judge below, on the solicitor's motion, was insufficient to support the finding and judgment appealed from. It appeared that after the original judgment was entered at December term, 1945, the defendant remained in jail until February 13, 1946, before he was taken to the Training School; that after about a month and a half he returned to his father's home in Asheville complaining of being sick and lack of medicine with which he had previously been treated. Subsequently his father took him back to the Training School where he remained about six weeks and again...