State v. Sherron , 4 N.C. App. 386 ( 1969 )

166 S.E.2d 836 (1969) 4 N.C. App. 386

STATE of North Carolina
v.
Claiborne Lee SHERRON.

No. 6914SC72.

Court of Appeals of North Carolina.

April 30, 1969.

Atty. Gen., Robert Morgan and Staff Atty. Christine Y. Denson, Raleigh, for the State.

John C. Randall, Durham, for defendant appellant.

FRANK M. PARKER, Judge.

The judgment sentencing defendant was entered 12 June 1968. The record on appeal was docketed in this Court 4 December 1968. This was 175 days after the date of the judgment appealed from. For failure to docket within the time prescribed by the rules of this Court, this case should be dismissed ex mero motu. Rules 5 and 48, Rules of Practice in the Court of Appeals; State v. Farrell, 3 N.C.App. 196, 164 S.E.2d 388; State v. Squires, 1 N.C.App. 199, 160 S.E.2d 550. Nevertheless, in an effort to determine that justice is done, we have reviewed the record with respect to the assignments of error, brought forward for review.

Defendant's first two assignments of error relate to the court's action in permitting the solicitor to ask defendant certain questions on cross-examination relating to defendant's previous occupation and prior convictions. However, defendant's objections were interposed prematurely before the solicitor completed asking the questions, and the court properly deferred ruling in each instance until the entire question had been asked. In case of the questions which are the subject matter of exceptions #5 and 6, defendant failed to object when the entire questions were asked. In case of the question which is the subject matter of exception #7, the court properly sustained defendant's objection when timely made. In neither instance was the court required to rule upon a question not yet fully asked.

In the case of exception #8, defendant interposed objection "to the whole line of questioning" relating to his prior convictions and requested the court to instruct the jury not to consider them. The court properly refused this request and properly ruled on each question as it was presented.

It is elementary law that a defendant who elects to testify in a criminal case may be cross-examined as to his prior convictions for purposes of impeaching him as a witness. State v. Jeffries, 3 N.C.App. 218, 164 S.E.2d 398; Stansbury, N.C. Evidence 2d, § 112. Defendant did not request that the evidence, competent for the purpose of impeachment, be so restricted. Absent this request the court is not required to give such instructions. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310.

Defendant next assigns as error the overruling of his motion for nonsuit. In support of his contention that nonsuit should have been allowed, defendant quotes from State v. Oliver, 70 N.C. 60, which was decided in 1874, as follows:

"If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive."

While today as in 1874 family disputes are better settled at home than in the courts, neither in 1874 nor at any time thereafter has the marital relationship afforded a license to commit assault. State v. Oliver, supra, does not so hold. In that case the husband was convicted for switching his wife; on appeal the judgment was affirmed. In the case presently before us there was plenary evidence to justify submitting the question of defendant's guilt to the jury, and the motion for nonsuit was properly overruled.

Defendant contends his motion in arrest of judgment should have been granted on the ground that the increased sentence imposed in the superior court placed an unconstitutional burden on his right to appeal from the district court. This contention is without merit. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371. Defendant further contends that his motion in arrest of judgment should have been granted on the additional grounds that his constitutional right to a jury trial has been infringed, in that in order to obtain a jury trial he had first to submit to trial without a jury in the district court and then appeal to superior court stigmatized by conviction in the court below. Defendant contends this procedure placed an impermissible burden upon exercise of his constitutional right to a jury trial. This contention is also without merit. Art. I, § 13 of the North Carolina Constitution provides:

"No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful persons in open court. The Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal."

By G.S. § 7A-272 the district court has exclusive, original jurisdiction for the trial of criminal actions below the grade of felony, and the same are declared to be petty misdemeanors. G.S. § 7A-196 provides: "In criminal cases there shall be no jury trials in the district court. Upon appeal to superior court trial shall be de novo, with jury trial as provided by law." This provision does not transgress the requirements of Art. I, § 13 of our State Constitution. State v. Norman, 237 N.C. 205, 74 S.E.2d 602; State v. Pulliam, 184 N.C. 681, 114 S.E. 394.

There is also no merit to defendant's contention that he is entitled to credit for the time he spent in custody following his trial and conviction in the district court and while awaiting trial de novo in the superior court. It is true that on any subsequent sentence imposed for the same conduct, a defendant must be given full credit for all time served under the previous sentence, State v. Stafford, supra; State v. Paige, 272 N.C. 417, 158 S.E.2d 522, but the time for which defendant here seeks credit was while he was in custody in default of bond awaiting his trial de novo in the superior court. It was not time spent while serving any sentence as punishment for the conduct charged in the warrant, and defendant's claim for credit is denied under the authority of Williams v. State, 269 N.C. 301, 152 S.E.2d 111; and State v. Weaver, 264 N.C. 681, 142 S.E.2d 633; see Note, 44 N.C.L.R. 458.

Defendant also excepts to the portion of the trial court's judgment which directed that defendant be confined in the Central Prison in Raleigh pending his appeal. A defendant may be sentenced to the Central Prison only upon conviction of a felony. G.S. § 148-28; State v. Floyd, 246 N.C. 434, 98 S.E.2d 478; State v. Cagle, 241 N.C. 134, 84 S.E.2d 649. Defendant in the present case was convicted only of a misdemeanor and should not have been ordered confined in Central Prison. G.S. § 153-189.1 does authorize the resident judge holding superior court in the district, whenever necessary for the safety of the prisoner or to avoid a breach of the peace in the county, to order a prisoner held in any county jail transferred to a secure jail in some other county or to a unit of the State Prison System designated by the Commissioner of Correction or his authorized representative. Under this statute the trial court, upon making an appropriate finding that it was necessary for the safety of the defendant, could have ordered defendant transferred to "a unit of the State Prison System designated by the Commissioner of Correction or his authorized representative," but the court should not have ordered defendant transferred directly to Central Prison absent a finding that the Central Prison had been properly designated for that purpose by the Commissioner of Correction or his authorized representative. However, in the present case the portion of the court's order here complained of by defendant was by its terms to be effective only pending his appeal, and in any event upon determination of this appeal defendant should be returned to the common jail of Durham County as provided in G.S. § 153-189.1. Had defendant desired to raise effectively an objection as to the lawfulness of the place of his confinement pending the determination of this appeal, he could have applied for a writ of habeas corpus. Having failed to do so, upon determination of this appeal the question has become moot.

We have examined the other assignments of error relating to remarks made by the assistant solicitor and to the judge's charge, and find no prejudicial error.

No error.

MALLARD, C. J., and BRITT, J., concur.