State v. Whaley, 149
| Decision Date | 30 September 1964 |
| Docket Number | No. 149,149 |
| Citation | 262 N.C. 536,138 S.E.2d 138 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Perry WHALEY. |
Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Ray B. Brady, and Staff Attorney Hornthal, for the State.
Reuben L. Elam, Shelby, for defendant.
In this Court defendant moves in arrest of the judgment in case No. 5632, on the third count, for that the bill of indictment does not contain the word 'feloniously.' A violation of G.S. § 14-89.1 is a felony. We have repeatedly held that bills of indictment charging felonies, in which there has been a failure to use the word 'feloniously,' and fatally defective, unless the Legislature otherwise expressly provides. State v. Callett, 211 N.C. 563, 191 S.E. 27. The motion must be sustained and the judgment arrested. This does not entitle defendant to be discharged on this count. The State, if it so elects, may put defendant to trial on a bill properly charging 'Safecracking.'
We find no error in the trial below on the other counts in the bills of indictment. However, since the sentences on those counts are to begin at the expiration of the sentence on the third count in the bill of indictment in case No. 5632 (safecracking), the judgments on such counts must be set aside and the cause remanded for judgment thereon. State v. Sutton, 244 N.C. 679, 94 S.E.2d 797.
No. 5632 (third count)--Judgment arrested.
No. 5632 () and No. 5632B ()--Sentences vacated and cause remanded for judgment.
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State v. Strickland, 32PA82
...by a judge of Superior Court, Cumberland County, without the necessity of a hearing or the presence of the defendant. State v. Whaley, 262 N.C. 536, 138 S.E.2d 138 (1964); State v. Sutton, 244 N.C. 679, 94 S.E.2d 797 NOS. 70CRS19799 and 70CRS19800 (kidnapping)--NEW TRIAL. NO. 70CRS19801 (mu......
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State v. Wesson
...a felony or guilty of a misdemeanor depends on whether the stolen property exceeds the value of $200. It was held in State v. Whaley, 262 N.C. 536, 138 S.E.2d 138 (1964), that 'bills of indictment charging felonies, in which there has been a failure to use the word 'feloniously,' are fatall......
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State v. Blakney, COA02-592.
...to use the word `feloniously,' are fatally defective, unless the Legislature otherwise expressly provides." State v. Whaley, 262 N.C. 536, 537, 138 S.E.2d 138, 139 (1964); see State v. Fowler, 266 N.C. 528, 530, 146 S.E.2d 418, 420 (1966); State v. Price, 265 N.C. 703, 704, 144 S.E.2d 865, ......
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State v. Lawrence, 331
...County Court of Wayne County does not properly charge a felony. The word 'feloniously' does not appear in the warrant. State v. Whaley, 262 N.C. 536, 138 S.E.2d 138. Moreover, the mere words 'second offense' are not sufficient allegation of facts to charge the felony--time and place of conv......