State v. Alston , 264 N.C. 398 ( 1965 )

141 S.E.2d 793 (1965) 264 N.C. 398

STATE of North Carolina
v.
Lenwood ALSTON, Petitioner.

No. 411.

Supreme Court of North Carolina.

May 5, 1965.

T. W. Bruton, Atty. Gen., and Theodore C. Brown, Jr., Staff Attorney, Raleigh, for the State.

Thomas F. East, Louisburg, for petitioner.

PER CURIAM.

We find no error in the judgment below denying petitioner a new trial. The findings of fact upon which the judgment is based are fully supported by the evidence. From a consideration of all the evidence, it is difficult to perceive how the judge could have arrived at any other conclusion.

The life sentence imposed at the trial is clearly unlawful and excessive. No specific punishment is prescribed by statute for conspiracy to murder. Murder is a felony. A conspiracy to commit a felony is a felony. State v. Terrell, 256 N.C. 232, 123 S.E.2d 469. "Every person who shall be convicted of any felony for which no specific punishment is prescribed by statute shall be imprisoned in the county jail or State prison not exceeding two years * * *, or if the offense be infamous, the person offending shall be imprisoned in the county jail or State prison not less than four months nor more than ten years, or be fined." G.S. § 14-2. A conspiracy to murder is an infamous offense. Upon defendant's plea to the indictment, he was subject to a judgment of imprisonment for a term not to exceed ten years.

The life sentence imposed by the court at the October 1962 Term of the Superior Court of Franklin County, in consequence of petitioner's plea of guilty to the indictment for conspiracy to murder Kinchen Williams, cannot be sustained. However, petitioner is not entitled to a discharge or a new trial. The plea stands. The life sentence is vacated and the cause is remanded to the Superior Court of Franklin County with direction that a proper judgment be entered. 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 herein vacated.

The proper officials of the State's prison are directed to deliver the petitioner to the Sheriff of Franklin County prior to the convening of the Session of Superior Court for the trial of criminal cases to be held in said county next after the certification of this opinion.

Error and remanded.