State v. Burgess

Annotate this Case

160 S.E.2d 105 (1968)

1 N.C. App. 142

STATE of North Carolina v. Wallace BURGESS.

No. 68SC51.

Court of Appeals of North Carolina.

March 27, 1968.

*106 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwin, for the State.

Haywood, Denny & Miller, by James H. Johnson, III, Durham, for defendant.

MALLARD, Chief Judge.

The only assignment of error asserted by the defendant is that the sentences imposed by the court were excessive. He contends that they constitute cruel and unusual punishment contrary to his constitutional rights, and that the court abused its discretion in imposing said sentences.

The first count in the bill of indictment charges the felony of breaking or entering in violation of G.S. § 14-54, and the second count charges the felony of larceny of personal property of the value of over $200. The defendant freely, understandingly and voluntarily pleaded guilty to both counts.

No abuse of discretion is shown. The prison sentences imposed do not exceed *107 the maximum provided by G.S. §§ 14-54 and 14-72. The Supreme Court said in State v. Bruce, 268 N.C. 174, 150 S.E.2d 216, "We have held in case after case that when the punishment does not exceed the limits fixed by the statute, it cannot be considered cruel and unusual punishment in a constitutional sense." See also State v. Greer, 270 N.C. 143, 153 S.E.2d 849.

In an addendum to his brief, defendant contends that the indictment is fatally defective for that it does not properly identify the premises, and he makes a motion in arrest of judgment. The first count in the indictment charges that the defendant did feloniously break and enter "a certain storehouse, shop, warehouse, dwellinghouse, bankinghouse, countinghouse and building occupied by one Dreame A. Glover * * *."

We think that this case is clearly distinguishable from the case of State v. Smith, 267 N.C. 755, 148 S.E.2d 844, relied on by the defendant. In the Smith case the court held that the description of the property in the bill of indictment, "a certain building occupied by one Chatham County Board of Education, a Government corporation," was fatally defective because under the general description of ownership, it could have been any school building or property owned by the Chatham County Board of Education. Obviously, the Board of Education of Chatham County owns more than one building. The ownership of the personal property in this case is alleged to be in an individual and the premises described, among other things, as the dwelling house occupied by Dreame A. Glover. In the light of the growth in population and in the number of structures (domestic, business and governmental), the prosecuting officers of this State would be well advised to identity the subject premises by street address, highway address, rural road address or some clear description and designation to set the subject premises apart from like and other structures described in G.S. Chap. 14, Art. 14. Nevertheless, in this case we hold that the indictment sufficiently described and designated the premises. The defendant's motion in arrest of judgment on the first count is denied.

The second count in the bill of indictment adequately charges the defendant with the felony of larceny of the television set and clock radio and alleges that they were property of Dreame A. Glover and had a value of $250. The larceny of property of the value of over $200 is a felony. G.S. § 14-72; State v. Cooper, 256 N.C. 372, 124 S.E.2d 91.

The defendant's motion in arrest of the judgment on the second count is without merit.

No error appears on the face of the record.

Affirmed.

BROCK and BRITT, JJ., concur.