{
  "id": 8562822,
  "name": "STATE v. R. D. THOMPSON",
  "name_abbreviation": "State v. Thompson",
  "decision_date": "1966-11-02",
  "docket_number": "",
  "first_page": "447",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    {
      "cite": "260 N.C. 352",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. R. D. THOMPSON."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nThompson does not attack the judgment in No. 19069-A. The sentence imposed thereby is authorized by G.S. 14-22.\nChapter 621, Session Laws of 1965, in full force and effect from and after its ratification on May 19, 1965, amended G.S. 14-177 so as to read as follows: \u201cCrime Against Nature. If any person shall commit the crime against nature, with mankind or beast, he shall be guilty of a felony, and shall be fined or imprisoned in the discretion of the court.\u201d\nIn S. v. Blackmon, 260 N.C. 352, 132 S.E. 2d 880, it was held that a statute (G.S. 14-55) prescribing punishment \u201cby fine or imprisonment in the State\u2019s prison, or both, in the discretion of the court,\u201d did not prescribe \u201cspecific punishment\u201d within the meaning of that term as used in G.S. 14-2. Where a person is convicted of any felony \u201cfor which no specific punishment is prescribed by statute,\u201d the maximum lawful term of imprisonment is ten years. G.S. 14-2. Hence, the sentence imposed by the judgment in No. 19069, to wit, imprisonment for a term of not less than eighteen nor more than twenty years, substantially exceeds the maximum lawful sentence.\n\u201cIt is the general rule in this jurisdiction that where a defendant has been properly convicted but given a sentence in excess of that authorized by law, and comes to this Court pursuant to a petition for writ of certiorari in a habeas corpus proceeding, when such defendant has not served as long under the sentence as he might have been legally imprisoned, we vacate the improper judgment and remand for proper sentence. In such case, the defendant should be given credit for the time served under the vacated judgment.\u201d S. v. Austin, 241 N.C. 548, 550, 85 S.E. 2d 924, 926.\nIn Case No. 19069, the crime against nature case, the said judgment is vacated, and the cause is remanded to the Superior Court of Robeson County for judgment imposing a proper sentence, Thompson to be given credit thereon for the time served under the vacated judgment.\nThe sentence of not less than five nor more than seven years imposed by the judgment pronounced in Case No. 19069-A will commence, as provided therein, at the expiration of the sentence imposed by the (new) judgment (hereafter) pronounced in Case No. 19069 as directed in this opinion.\nThe Clerk shall forward a certified copy of this opinion to each of the following: (1) The Clerk of the Superior Court of Robeson County; (2) the North Carolina Prison Department; and (3) Thompson.\nJudgment in No. 19069 vacated, and cause remanded for proper judgment in that case.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Attorney General Bruton and Staff Attorney White for the State.",
      "B. D. Thompson in propria persona."
    ],
    "corrections": "",
    "head_matter": "STATE v. R. D. THOMPSON.\n(Filed 2 November, 1966.)\n1. Crime Against Nature \u00a7 2; Criminal Law \u00a7 131\u2014\nTbe punishment of a fine or imprisonment in the discretion of the court prescribed by G.S. 14^177 as amended is not a \u201cspecific punishment\u201d within the meaning of G.S. 14-2, and the maximum lawful imprisonment is ten years.\n2. Criminal Law \u00a7 133\u2014\nWhere consecutive sentences are imposed upon two convictions and the first sentence exceeds the statutory maximum, the cause must be remanded for proper sentence on the first indictment with credit for the time served, defendant not having yet served as long under that sentence as he might have been legally imprisoned, and the second sentence will commence as provided therein at the expiration of the proper sentence on the first.\nON certiorari to review judgment of Johnson, J., entered at June Criminal Session 1966 of the Superior Court of RobesoN County.\nThe petition, the Attorney General\u2019s answer and the record proper of proceedings in the Superior Court of Robeson County at June Criminal Session 1966 disclose the following:\nThe petitioner (referred to hereafter as Thompson) was indicted in each of two cases. In Case No. 19069, Thompson was charged with having committed, on April 2, 1966, the crime against nature with a named female child under twelve years of age. In Case No. 19069-A, Thompson was charged with the rape of said female child on said date. The two cases were consolidated for trial. Thompson was represented at trial by court-appointed counsel. In No. 19069 the jury returned a verdict of \u201cGuilty of crime against nature as charged in the bill of Indictment,\u201d and in No. 19069-A the jury returned a verdict of \u201cguilty of assault on a female with intent to commit rape as charged in the bill of indictment.\u201d\nIn No. 19069 the court pronounced judgment imposing a prison sentence of not less than eighteen nor more than twenty years. In No. 19069-A the court pronounced judgment imposing a prison sentence of not less than five nor more than seven years, \u201c(t)his sentence to commence at the expiration of the sentence imposed in #19069.\u201d\nThompson, in his petition, prays that this Court vacate the judgment in No. 19069, the crime against nature case, and remand this case \u201cFoe Peopee Judgment, Not To Exceed The Statutoey Maximum Of (10) TeN Yeabs.\u201d This Court allows Thompson\u2019s petition for certiorari and grants relief as set forth in the opinion.\nAttorney General Bruton and Staff Attorney White for the State.\nB. D. Thompson in propria persona."
  },
  "file_name": "0447-01",
  "first_page_order": 487,
  "last_page_order": 489
}