State v. Williams , 21 N.C. App. 70 ( 1974 )

BRITT, Judge.

Defendant’s assignments of error to the judgments imposed have merit and are sustained.

G.S. 14-107 provides in pertinent part as follows:

“Worthless checks. — It shall be unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check or draft as aforesaid, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.

“Any person, firm or corporation violating any provision of this section shall be guilty of a misdemeanor and upon conviction shall be punished as follows:

(1) If the amount of such check or draft is not over fifty dollars ($50.00), the punishment shall be by a fine not to exceed fifty dollars ($50.00) or imprisonment for not more than 30 days. Provided, however, if such person has been convicted three times of violating G.S. 14-107, he shall on the fourth and all subsequent convictions be punished in the discretion of the district or superior court as for a general misdemeanor.”

In State v. McCrowe, 272 N.C. 523, 524, 158 S.E. 2d 337, 339 (1967), the Supreme Court held: “In cases in which there is a verdict or plea of guilty to more than one count in a warrant or bill of indictment, and the Court imposes a single judgment (sentence, or fine, or both) a consolidation for the purpose of judgment will be presumed. The punishment may not exceed that permitted on the major count.” (Emphasis added.) We hold that the same rule applies to charges set forth in separate warrants or bills of indictment.

The question then arises as to the maximum punishment permitted on either of the warrants before the court in this case. No warrant alleged the amount of the check as being greater than $50.00, therefore, the maximum punishment permitted in each case is a fine of $50.00 or imprisonment for 30 days unless the proviso relating to a fourth or subsquent conviction is applicable.

In State v. Miller, 237 N.C. 427, 429, 75 S.E. 2d 242, 243 (1953), in an opinion by Justice Ervin, the court said: “Where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty. (Citations.)” See also Harrell v. Scheidt, Comr. of Motor Vehicles, 243 N.C. 735, 92 S.E. 2d 182 (1956).

In State v. Owenby, 10 N.C. App. 170, 171, 177 S.E. 2d 749, 749 (1970), this court said:

“For a defendant to be subjected under G.S. 20-179 to the infliction of the heavier punishment for a second offense of driving while under the influence of intoxicating liquor, it is necessary that a prior conviction, and the time and place thereof, be alleged in the warrant and proved by the State. State v. White, 246 N.C. 587, 99 S.E. 2d 772; Harrell v. Scheidt, Comr. of Motor Vehicles [supra] ; State v. Cole, 241 N.C. 576, 86 S.E. 2d 203. Whether there was in fact a prior conviction is a question for the jury and not the court. State v. Cole, supra.”

Neither of the warrants in the case at bar alleged that the offense charged was a fourth or subsequent offense, therefore, the maximum punishment authorized in either of the cases is a fine not exceeding $50.00 or imprisonment for not more than 30 days. In a consolidation of two or more of the cases for purpose of judgment, the court was not authorized to impose punishment greater than that permitted in an individual case.

For the reasons stated, the judgments, together with the orders consolidating the cases for purpose of judgments, are vacated and this cause is remanded to the superior court for entry of proper judgments. On remand, the court may enter judgments in the respective cases, or it may consolidate any or all of the cases for purpose of judgment, as it deems advisable.

Error and remanded.

Judges Parker and Vaughn concur.