State v. Robinson , 271 N.C. 448 ( 1967 )

156 S.E.2d 854 (1967) 271 N.C. 448

STATE of North Carolina
v.
James ROBINSON.

No. 169.

Supreme Court of North Carolina.

September 27, 1967.

Williams & Williams, by John B. Williams, Jr., Clinton, for defendant appellant.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

PLESS, Justice.

G.S. § 14-54 provides that the penalty for breaking and entering shall be imprisonment for not more than ten (10) years. Under G.S. § 14-72, the larceny of property taken by breaking and entering a storehouse shall be a felony, and the punishment therefor could be as much as ten (10) years' imprisonment; thus, the Court could have pronounced sentences totaling twenty (20) years. The sole exception presented by the defendant is that the prison sentence of not less than seven (7) nor more than nine (9) years constitutes cruel and unusual punishment.

In State v. Bruce, 268 N.C. 174, 150 S.E.2d 216, Chief Justice Parker, with his usual thoroughness, discussed this question. He said: "We have held in case after case that when the punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense." He then quoted from State v. McNally, 152 Conn. 598, 211 A.2d 162, cert. den., 382 U.S. 948, 86 S. Ct. 410, 15 L. Ed. 2d 356: "`When the objection is to the sentence and not to the statute under which the sentence was imposed, the sentence is not cruel or unusual if it is in conformity with the limit fixed by statute. When the statute does not violate the constitution, any punishment which conforms to it cannot be adjudged excessive since it is within the power of the legislature and not the judiciary to determine the extent of the punishment which may be imposed on those convicted of crime. * * * As the sentences imposed did not exceed the permissible statutory penalties, the punishment cannot be held to be cruel and unusual as a matter of law.'"

The defendant told the Court that he had been in prison almost constantly for the past ten years, that he had "pulled time" for about twenty cases of breaking and entering, for two cases of larceny, for receiving stolen property one time, for forgery, and for escape. With this kind of record, the Court was entirely justified in feeling that society should be protected from the defendant for a substantial period of time. The sentence imposed was entirely reasonable, and could not be construed as cruel and unusual in a constitutional sense.

No error.