State v. Sellers

Barnhill, J.

How this cause reached this Court is of little moment. The record discloses the patent invalidity of the judgment pronounced which works a substantial injustice to the petitioner. It is our duty to take cognizance thereof and correct it, either in the exercise of our appellate or our supervisory jurisdiction, depending on how the case is presented.

S. v. Shipman, 203 N.C. 325 , 166 S.E. 298 ;

S. v. Cochran, 230 N.C. 523 , 53 S.E. 2d 663 .

The identity of the bill of indictment for robbery to which the petitioner entered his plea cannot be successfully challenged. The bill was returned in case No. 569; the plea was entered in that case; and judgment was pronounced on that plea. That the trial judge, for some undisclosed reason, acted upon a misapprehension as to the contents of the bill does not affect this conclusion.

Gr.S. 14-87 creates no new offense. It does not add to or subtract from the common law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense, more severe punishment may be imposed.

S. v. Jones, 227 N.C. 402 , 42 S.E. 2d 465 ;

S. v. Keller, 214 N.C. 447 , 199 S.E. 620 ;

S. v. Bell, 228 N.C. 659 , 46 S.E. 2d 834 ;

S. v. Chase, 231 N.C. 589 , 58 S.E. 2d 364 .

The court below in pronouncing judgment on petitioner’s plea to the bill of indictment under which he was put on trial was bound by the provisions of Gr.S. 14-2 which fixes ten years as the maximum sentence which may be imposed. Hence the sentence pronounced in case No. 569 cannot be sustained.

However, the petitioner is not entitled to a discharge or a new trial. The plea stands and the petitioner’s debt to society thereby established must be paid.

S. v. Shipman, supra; S. v. Cherry, 154 N.C. 624 , 70 S.E. 294 . To that end the judgment pronounced in case No. 569 on the charge of robbery is vacated and the cause is remanded to the Superior Court of Columbus County with direction that a proper sentence be imposed. The court below, in pronouncing sentence, should be careful to *651 so condition its judgment as to allow petitioner credit for tbe time be bas served in execution of tbe sentence hereby vacated.

Tbe contention tbat tbe sentences in case No. 568 are void for ambiguity is without substantial merit.

Tbe invalidity of tbe judgment in case No. 569 does not render tbe judgment in No. 568 void for ambiguity or uncertainty as to tbe time of tbe beginning of tbe sentences thereby imposed.

S. v. Cathey, 170 N.C. 794 , 87 S.E. 532 ;

S. v. Satterwhite, 182 N.C. 892 , 109 S.E. 862 ;

S. v. McAfee, 198 N.C. 507 , 152 S.E. 391 ;

Blitz v. U. S., 153 U.S. 308 , 38 L. Ed. 725 ;

U. S. v. Carpenter, 151 F. 214 ; 24 C.J.S. 1242; 15 A.J. 124-5.

“Tbe judgment is tbe penalty of tbe law, as declared by tbe court, while tbe direction with respect to tbe time of carrying it into effect is in tbe nature of an award of execution.” Tbe sentence imposed is tbe essential part of tbe judgment. Tbe time of its execution is merely directory.

S. v. McAfee, supra.

To tbe end tbat tbe directives herein contained may be fully complied with, tbe proper officials of tbe State’s prison are directed to deliver custody of tbe petitioner to tbe sheriff of Columbus County prior to tbe convening of tbe term of tbe Superior Court for tbe trial of criminal cases to be held in said county next after tbe certification of this opinion.

Error and remanded.