55 S.E.2d 185 | N.C. | 1949
The defendant was brought before the court upon a bill of indictment charging him with obtaining $15.90 in money from the prosecuting witness, M. R. Wall, by falsely pretending "that he, the said J. P. Stansbury, was John Mitchell and was representing the American Legion and was distributing and selling a book containing the photographs of all Stokes County Veterans of World War II," including that of a son of the prosecuting witness who had died while serving in the armed forces of the United States. When the case came on for trial, the defendant entered a plea of nolo contendere, which was accepted by the Solicitor by leave of the court. Before pronouncing sentence, the court heard evidence from both the prosecution and the defense with a view to determining what punishment should be meted out to the accused. Such testimony tended to show not only that the defendant had committed the crime charged in the indictment, but also that he had preyed during a substantial period *590 of time in a like criminal manner upon numerous other persons in North Carolina and elsewhere who had lost sons in the Second World War. Moreover, it appeared on the hearing that between the time of the commission of the specific offense named in the indictment and the trial in this case the defendant had committed a crime against the United States, to-wit, falsely impersonating an officer of the United States and in such pretended character obtaining money from another with intent to defraud such other contrary to the statute embodied in 18 U.S.C.A. 76, and had served 18 months in prison therefor under sentence of the United States District Court for the Eastern District of Tennessee. After hearing all of the testimony on both sides, the court ordered that the defendant "be confined in the State Prison at Raleigh, North Carolina, for a period of not less than 5, nor more than 6 years, to be assigned to hard labor as provided by law under the supervision of the State Highway and Public Works Commission." The defendant excepted to this judgment, and appealed. Appellant asserts that the sentence is invalid for these reasons: (1) That it inflicts a cruel or unusual punishment upon him contrary to Article I, Section 14, of the Constitution; and (2) that in pronouncing the judgment the court abused its discretion by "failing to take into consideration defendant's sentence in Federal Court for a similar offense."
The defendant's plea of nolo contendere constituted a formal declaration on his part that he would not contend with the Solicitor in respect to the charge, and was tantamount to a plea of guilty for the purposes of this particular criminal action. Consequently, the court acquired full power to pronounce judgment against the accused for the crime charged in the indictment, i.e., the felony of obtaining property by false pretenses as defined by G.S.
The Legislature has expressly stipulated that any person obtaining property by false pretenses "shall be guilty of a felony, and shall be imprisoned in the State's Prison not less than four months nor more than ten years, or fined, in the discretion of the court." G.S.
This brings us to a consideration of the second ground urged by the defendant as a basis for invalidating the judgment. The controlling principle on this aspect of the case is thus stated in S. v. Sudderth,
Appellant contends that the trial court abused its statutory discretion in pronouncing judgment against him by "failing to take into consideration defendant's sentence in the Federal Court for a similar offense."
This position is insupportable even if it be taken for granted that the court ignored this matter when it pronounced the judgment in controversy. When it passed sentence, the court imposed punishment upon the accused for a crime against North Carolina, i.e., obtaining property by false pretenses, and its power to act in the premises within the discretionary limits established by the Legislature of the State was in no wise circumscribed by the fact that the defendant had been punished by the United States for an offense against it, i.e., falsely impersonating an officer of the United States and in such pretended character obtaining money from another with intent to defraud such other. Besides, it is to be noted that nothing in the record indicates that the court ignored the punishment visited upon the defendant by the United States District Court for the Eastern District of Tennessee when it rendered the judgment in controversy. Indeed, the converse is true. The record affirmatively shows that the court carefully heard and painstakingly considered all available information concerning the nature of the offense with which the accused was charged, and his character, propensities, and past record in fixing the kind and amount of his punishment. In so doing, the court followed a time-honored practice. S. v. Beavers,
The reasons given necessitate an affirmance of the judgment.
Affirmed. *592
