State v. Weaver, No. 824

Docket NºNo. 824
Citation264 N.C. 681, 142 S.E.2d 633
Case DateJune 18, 1965
CourtUnited States State Supreme Court of North Carolina

Page 633

142 S.E.2d 633
264 N.C. 681
STATE,
v.
Walter WEAVER.
No. 824.
Supreme Court of North Carolina.
June 18, 1965.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock for the State.

W. R. Dalton, Jr., Burlington, for defendant appellant.

BOBBITT, Justice.

Defendant does not challenge the validity of the trial and verdict at December 1964 Session. He contends, based on facts narrated below, that the judgment pronounced at said term is erroneous and excessive because it fails to credit on the two-year sentence it imposes the time between the date of the (subsequently vacated) judgment pronounced at May 1963 Session and the date of the judgment pronounced at December 1964 Session.

The minutes of the May 1963 Session show 'defendant in person and thru his attorney, W. F. Briley,' pleaded nolo contendere to felonious assault as charged in the bill of indictment. Judgment, imposing a prison sentence of not less than five nor more than seven years, was [264 N.C. 683] pronounced. The said minutes contain no reference to when or by whom Mr. Briley was employed or appointed. On May 9, 1963 defendant was committed to State's Prison to serve said sentence.

On September 25, 1964, after a habeas corpus hearing in the United States District Court for the Middle District of North Carolina, Stanley, Chief Judge, based on findings of fact and conclusions of law set forth in a memorandum opinion, 'ORDERED, ADJUDGED AND DECREED that the petitioner's plea of nolo contendere entered on May 9, 1963, and the judgment pronounced thereon, are vacated and set aside, and that the petitioner be granted a new trial.' It was FURTHER ORDERED' (1) 'that unless the State of North Carolina elects to retry and retries the petitioner within six months from September 25, 1964, an Order will be entered, upon application of petitioner, discharging him from custody,' and (2) 'that the petitioner be admitted to bond in the sum of $2,500.00 to be approved by the Clerk of the Superior

Page 635

Court of Alamance County, pending his new trial.' Apparently, defendant did not make bond and obtain his release 'pending his new trial.' At his trial at December 1964 Session he testified he had been confined in Alamance County Jail since Cotober 8, 1964.

Defendant was indicted for assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death, the felony created and defined by G.S. § 14-32. State v. Jones, 258 N.C. 89, 128 S.C.2d 1. Upon conviction, the punishment prescribed by the statute is imprisonment 'for a period not less than four months nor more than ten years.'

Assault with a deadly weapon is a general misdemeanor, punishable by fine or imprisonment or both, 'at the discretion of the court,' G.S. § 14-33, the maximum legal sentence therefor being two years. State v. Austin, 241 N.C. 548, 550, 85 S.E.2d 924. It is an essential element of the felony created and defined by G.S. § 14-32, being an included 'less degree of the same crime.' G.S. § 15-170; G.S. § 15-169.

At defendant's trial at December 1964 Session on said felony indictment, there being evidence such included crime of less degree was committed, the court properly instructed the jury that guilty of an assault with a deadly weapon was a permissible verdict. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Jones, 264 N.C. 134, 141 S.E.2d 27. The jury acquitted defendant of the felony charge but found him guilty of assault with a deadly weapon, a general misdemeanor.

The following distinction is noted: From the pronouncement of judgment at May 1963 Session until said judgment was vacated by Judge Stanley's order of September 25, 1964, defendant's de facto status was that of a prisoner serving a sentence. From September 25, 1964 until the pronouncement of judgment at December 1964 Session, defendant's [264 N.C. 684] status was that of a person under indictment awaiting trial and in custody on account of failure to give the appearance bond fixed by Judge Stanley's order.

The Attorney General's position is that, under our decisions in State v. Williams, 261 N.C. 172, 134 S.E.2d 163; State v. White, 262 N.C. 52, 136 S.E.2d 205, cert. den., 379 U.S. 1005, 85 S.Ct. 726, 13 L.Ed.2d 707; State v. Anderson, 262 N.C. 491, 137 S.E.2d 823; State v. Slade, 264 N.C. 70, 140 S.W.2d 723, defendant is not entitled to any credit as a matter of right.

The present case is factually distinguishable from Williams, White, Anderson and Slade in one respect, namely, that this defendant, when retried on the identical bill of indictment, was not convicted of the idential crime (the felony) but of an included 'less degree of the same crime.' It is factually distinguishable from White, Anderson and Slade, but not from Williams, in this respect: The judgment pronounced at December 1964 Session, upon defendant's conviction of assault with a deadly weapon, imposed the maximum legal sentence. In White, Anderson and Slade, the total of the sentence pronounced at retrial and the time served under the vacated judgment was within the legal maximum.

The Goff cases, discussed below, bear upon defendant's status...

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36 practice notes
  • Patton v. State of North Carolina, No. 11005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 14 Junio 1967
    ...Judgment of the Court is that the Defendant be imprisoned in the State's Prison for a term of twenty years * * *." 2 State v. Weaver, 264 N.C. 681, 142 S.E. 2d 633 (1965); State v. Slade, 264 N.C. 70, 140 S.E.2d 723 (1965); State v. Anderson, 262 N.C. 491, 137 S.E.2d 823 (1964); State v. Wh......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • 23 Junio 1969
    ...the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. In any event, Pearce was given such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.A......
  • Patton v. State of North Carolina, Civ. No. 2397.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • 20 Julio 1966
    ...lawfully increase the sentence. State v. Williams, 261 N.C. 172, 134 S.E.2d 163 at 165 (1964); (partially overruled in State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, but not so as to withdraw the application of the quoted statement to To the foregoing, Eddie Patton interposes the Fourteenth......
  • State v. Brown, No. 577
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 25 Agosto 1967
    ...the defendant credit for time served under the previous sentence which was vacated by the Federal Court on 26 July 1966. State v. Weaver, 264 N.C. 681, 142 S.E.2d In respect to the increased sentence on the second trial, this is [271 N.C. 263] to be noted: In the first trial defendant did n......
  • Request a trial to view additional results
36 cases
  • Patton v. State of North Carolina, No. 11005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 14 Junio 1967
    ...Judgment of the Court is that the Defendant be imprisoned in the State's Prison for a term of twenty years * * *." 2 State v. Weaver, 264 N.C. 681, 142 S.E. 2d 633 (1965); State v. Slade, 264 N.C. 70, 140 S.E.2d 723 (1965); State v. Anderson, 262 N.C. 491, 137 S.E.2d 823 (1964); State v. Wh......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • 23 Junio 1969
    ...the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. In any event, Pearce was given such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.A......
  • Patton v. State of North Carolina, Civ. No. 2397.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • 20 Julio 1966
    ...lawfully increase the sentence. State v. Williams, 261 N.C. 172, 134 S.E.2d 163 at 165 (1964); (partially overruled in State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, but not so as to withdraw the application of the quoted statement to To the foregoing, Eddie Patton interposes the Fourteenth......
  • State v. Brown, No. 577
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 25 Agosto 1967
    ...the defendant credit for time served under the previous sentence which was vacated by the Federal Court on 26 July 1966. State v. Weaver, 264 N.C. 681, 142 S.E.2d In respect to the increased sentence on the second trial, this is [271 N.C. 263] to be noted: In the first trial defendant did n......
  • Request a trial to view additional results

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