State v. Whaley , 262 N.C. 536 ( 1964 )

138 S.E.2d 138 (1964) 262 N.C. 536

STATE
v.
Perry WHALEY.

No. 149.

Supreme Court of North Carolina.

September 30, 1964.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Ray B. Brady, and Staff Attorney Hornthal, for the State.

Reuben L. Elam, Shelby, for defendant.

PER CURIAM.

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," are 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 (first and second counts) and No. 5632B (first and second counts)— Sentences vacated and cause remanded for judgment.