State v. . Tyson, 27 S.E.2d 113

State v. . Tyson

27 S.E.2d 113

N.C.

1943

Check Treatment

DeNny, J.

Defendant’s only exception is to the sentence imposed as being viоlative of the Constitution of North Carolina, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Art. I, sec. 14, and the statutes presсribing punishment for misdemeanors. The exception must be sustained.

C. S., 4173, provides: “All misdеmeanors, where a specific punishment is not prescribed, shall be punished as misdemeanors at common law; but if the offense be infamous, or dоne in secrecy and malice, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or with deceit and intent to defraud, the оffender shall be punished by imprisonment in the county jail or state prison for not less than four months nor more than ten years, or shall be fined.”

While his Honor found thаt the assault was aggravated, shocking and outrageous to the sensibilities and decencies of right-thinking citizens, the court did not find the offense to be infamоus. Moreover, we do not think the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍plea tendered by the defendant, and accepted by the court, constituted a plea of guilty to an infamоus offense, but, on the contrary, constituted a plea of guilty of a misdemеanor punishable as provided in C. S., 4215.

*494 In the case of S. v. Smith, 174 N. C., 804, 93 S. E., 910, tbe defendant was tried upon a bill of indiсtment charging a secret assault. Tbe evidence tended to show an аggravated assault with a deadly weapon, defendant firing twice with a pistol and slightly injuring tbe prosecuting witness. At tbe conclusion of tbe State’s evidence, tbe defendant tendered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a plea of guilty of assault with a deadly weapon, which plea was accepted by tbe State. Tbe court sentenced tbe defendant to four years imprisonment in tbe penitentiary. Uрon appeal this Court, in passing upon tbe identical question which is presented on this record, said: “Tbe decision in McNeil’s case is epitomized in tbe beadnotes as follows: ‘Misdemeanors made punishable as at common law, or punishable by fine or imprisonment, or both, can be punished by fine or imprisonment in tbe county jail, or both. Hence, a general verdict of “guilty” upon an indictment containing three counts, to wit, one for an assault with a deadly weaрon with intent to kill, another for a similar assault with intent to injure, and a third for a common assault and battery, will not, since tbe Act of 1870-71, cb. 43, justify imprisonment in tbe penitentiary. Fine and imprisonment at tbe discretion of tbe court does not cоnfer tbe power to imprison in tbe penitentiary.’ While tbe language of sеction 3620 authorizes a punishment for assault with or without intent to kill, by fine or imprisonmеnt, or both, in tbe discretion of tbe court, it does not at all mean that tbe judgе may change tbe character of punishment recognized and established by tbe law for such an offense, but that, within ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such limits, tbe extent of tbe punishment is referred to tbe discretion of tbe trial judge, and bis sentence may not be interfered with by tbe appellate Court, except in case of manifest and gross abuse. This position is emphasized by tbe fact that, under tbe former law (сhapter 167, Laws 1868, secs. 8 and 7), an assault with a deadly weapon, or by any mеans likely to produce death, with intent to kill, could be punished by imprisonment in tbе penitentiary not exceeding ten years;, and, in section 7, an assault with a deadly or dangerous weapon, without intent to kill, but with intent to injure, was so punishable not exceeding five years; and the statute of 1870-71, chapter 43, now Revisal, sec. 3620 (now C. S., 4215), was substituted for these sections and was enacted for tbe express purpose of repealing them. . . . Recurring to tbe many .deсisions imposing sentence for misdemeanors, we find none where'a sentence of more than two years has been approved.” S. v. Driver, 78 N. C., 429; S. v. Stokes, 181 N. C., 539, 106 S. E., 763; S. v. Hill, 181 N. C., 558, 107 S. E., 140; S. v. Williams, 186 N. C., 627, 120 S. E., 224; S. v. Crews, 214 N. C., 705, 200 S. E., 378.

There is еrror in tbe judgment rendered below, and tbe case is remanded to Pitt County Supеrior Court, to tbe end that a proper judg *495 ment may be rendered on the plea tendered by the defendant and accepted by the State, in accordance with this opinion.

Error and remanded.