State v. Sellers , 234 N.C. 648 ( 1951 )

68 S.E.2d 308 (1951) 234 N.C. 648

In re SELLERS. STATE
v.
SELLERS.

No. 433.

Supreme Court of North Carolina.

December 12, 1951.

Charles F. Blanchard and William H. Yarborough, Jr., Raleigh, for petitioner.

R. Brookes Peters, Jr., E. O. Brogden, Jr., and L. J. Beltman, Raleigh, for respondent.

BARNHILL, Justice.

How this cause reached this Court is of little moment. The record discloses the patent invalidity of the judgment pronounced which works a substantial injustice to the petitioner. It is our duty to take cognizance thereof and correct it, either in the exercise of our appellate or our supervisory jurisdiction, depending on how the case is presented. State v. Shipman, 203 N.C. 325, 166 S.E. 298; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663.

The identity of the bill of indictment for robbery to which the petitioner entered his plea cannot be successfully challenged. The bill was returned in case No. 569; the plea was entered in that case; and judgment, was pronounced on that plea. That the trial judge, for some undisclosed reason, acted upon a misapprehension as to the contents of the bill does not affect this conclusion.

G.S. § 14-87 creates no new offense. It does not add to or subtract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense, more severe punishment may be imposed. State v. Jones, 227 N.C. 402, 42 S.E.2d 465; State v. Keller, 214 N.C. 447, 199 S.E. 620; State v. Bell, 228 N.C. 659, 46 S.E.2d 834; State v. Chase, 231 N.C. 589, 58 S.E.2d 364.

The court below in pronouncing judgment on petitioner's plea to the bill of indictment under which he was put on trial was bound by the provisions of G.S. § 14-2 which fixes ten years as the maximum sentence which may be imposed. Hence the sentence pronounced in case No. 569 cannot be sustained.

However, the petitioner is not entitled to a discharge or a new trial. The plea stands and the petitioner's debt to society thereby established must be paid. State v. Shipman, supra; State v. Cherry, 154 N.C. 624, 70 S.E. 294. To that end the judgment pronounced in case No. 569 on the charge of robbery is vacated and the cause is remanded to the Superior Court of Columbus County with direction that a proper sentence be imposed. The court below, in pronouncing sentence, should be careful to so condition its judgment as to allow petitioner credit for the time he has served in execution of the sentence hereby vacated.

The contention that the sentences in case No. 568 are void for ambiguity is without substantial merit.

The invalidity of the judgment in case No. 569 does not render the judgment in No. 568 void for ambiguity or uncertainty as to the time of the beginning of the sentences thereby imposed. State v. Cathey, 170 N.C. 794, 87 S.E. 532; State v. Satterwhite, 182 N.C 892, 109 S.E. 862; State v. McAfee, 198 N.C. 507, 152 S.E. 391; Blitz v. U. S., 153 U.S. 308, 14 S. Ct. 924, 38 L.Ed 725; United States v. Carpenter, 9 Cir., 151 F. 214; 24 C.J.S., Criminal Law, § 1996, p. 1242; 15 A.J. 124-5.

"The judgment is the penalty of the law, as declared by the court, while the direction, with respect to the time of carrying it into effect, is in the nature of an award of execution." The sentence imposed is the essential part of the judgment. The time of its execution is merely directory. State v. McAfee, supra [198 N.C. 507, 152 S.E. 392.]

To the end that the directives herein contained may be fully complied with, the proper officials of the State's prison are directed to deliver custody of the petitioner to the sheriff of Columbus County prior to the convening of the term of the Superior Court for the trial of criminal cases to be held in said county next after the certification of this opinion.

Error and remanded.