#### STATE OF NORTH CAROLINA v. CLEMENTINE MURRELL

No. 738SC134

(Filed 23 May 1973)

Homicide § 31— involuntary manslaughter — maximum sentence

Involuntary manslaughter is a felony and punishable under G.S. 14-2 which permits a maximum prison sentence of ten years.

Appeal by defendant from Wood, Judge, 3 October 1972 Criminal Session, Lenoir Superior Court.

The indictment against defendant charged her with the murder of James Cleveland Taylor on or about 1 August 1972. Defendant tendered a plea of guilty of involuntary manslaughter. After due inquiry, the court adjudged that the plea was freely, understanding^, and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency, and accepted the plea. From judgment imposing prison sentence of not less than five nor more than seven years, defendant appealed.

Attorney General Robert Morgan by Diederieh Heidgerd, Associate Attorney, for the State.

Gerrans & Spence by C. E. Gerrans for defendant appellant.

BRITT, Judge.

The only assignment of error brought forward and argued in defendant’s brief relates to the judgment imposed. Defendant contends that the maximum prison sentence permissible for involuntary manslaughter is two years and cites State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970). There is no merit in this contention.

Defendant recognizes the court’s holdings in State v. Dunn, 208 N.C. 333, 180 S.E. 708 (1935), State v. Blackmon, 260 N.C. 352, 132 S.E. 2d 880 (1963) and State v. Adams, 266 N.C. 406, 146 S.E. 2d 505 (1966) to the effect that involuntary manslaughter is a felony and punishable under G.S. 14-2 which permits a maximum prison sentence' of 10 years. However, defendant argues that State v. Spencer, supra, overruled those cases. We reject this argument.

*328 Spencer is clearly distinguishable. In that case defendants were charged with wilfully standing upon the traveled portion of a State highway in such a manner as to impede the regular flow of traffic, a violation of G.S. 20-174.1. By virtue of G.S. 20-176 a violation of 20-174.1 is a misdemeanor. In saying that “an offense punishable by fine or imprisonment, or both, in the discretion of the court is a general misdemeanor for which an offender may be imprisoned for two years in the discretion of the court,” the court was discussing misdemeanors and not the entire area of criminal law..

Furthermore, in State v. Stimpson, 279 N.C. 716, 185 S.E. 2d 168 (1971), in an opinion by Chief Justice Bobbitt decided after Spencer, the court restated' “that the maximum lawful term of imprisonment for involuntary manslaughter is 10 years.”

The judgment appealed from is

Affirmed.

Judges Campbell and Morris concur.