State v. Godwin

187 S.E.2d 400 (1972)

13 N.C. App. 700

STATE of North Carolina v. Lenoux GODWIN.

No. 7212SC239.

Court of Appeals of North Carolina.

March 29, 1972.

Certiorari Denied May 2, 1972.

*402 Atty. Gen. Robert Morgan, by Associate Atty. Gen. Edwin M. Speas, Jr., for the State.

Arthur L. Lane, Fayetteville, for defendant-appellant.

Certiorari Denied by Supreme Court May 2, 1972.

BROCK, Judge.

The defendant assigns as error the court's denial of his motion for judgment as of nonsuit. There is ample evidence in the record to require the submission of this case to the jury.

Based on 22 exceptions in the record, the defendant contends the court erred in allowing irrelevant, immaterial and prejudicial evidence to be introduced in the presence of the jury. We have examined each exception embraced within this assignment of error, and we conclude that all of the testimony complained of was relevant and material, and that the court did not commit prejudicial error in allowing the evidence to be introduced in the presence of the jury.

We have carefully examined all of the defendant's additional assignments of error and find them to be without merit.

In two opinions of this court, in cases involving convictions for possession of marijuana, the court ex mero motu reduced the sentences imposed by the trial judge. This was done on the theory that the maximum punishment provided by G.S. § 90-95, effective 1 January 1972, was controlling. These two opinions are in State v. McIntyre, 13 N.C.App. 479, 186 S.E.2d 207; and State v. Smith, N.C.App., 186 S.E.2d 600 (filed 23 February 1972).

Also in two opinions of this court, in cases involving convictions for possession of marijuana, the court made no changes in the sentences imposed by the trial judge. These two opinions are in State v. Kistler, 13 N.C.App. 431, 185 S.E.2d 596; and State v. Harvey, 13 N.C.App. 433, 185 S.E.2d 601.

Again in the present case we take no action upon the sentence of four years imposed by the trial judge. We do not agree with the reasoning of State v. McIntyre, supra, and State v. Smith, supra.

The rationale of McIntyre and Smith seems to be that G.S. § 90-113.7(a) does not specifically mention punishment; therefore, it does not constitute a saving clause with respect to prior allowable punishment.

Also the rationale of McIntyre and Smith seems to infer that "prosecution" is *403 limited and terminated at the "trial" stage of a criminal action and that only the "prosecution" (trial) is saved by G.S. § 90-113.7. We think "prosecution" has a much broader meaning. A "prosecution" is the means adopted to bring a supposed offender to justice and punishment by due course of law, and consists of the series of proceedings from the time when the formal accusation is made by the filing of an affidavit or a bill of indictment or information in the criminal court until the proceedings are terminated. Vol. 34A, Words and Phrases, "Prosecution," p. 485. "Prosecution" is following up or carrying an action already commenced until the remedy be obtained, and, in criminal cases, is not complete until defendant begins to serve his sentence or the action is dismissed. See, United States v. Conware, C.A. 9, 415 F.2d 82, 84. It is our opinion that "prosecution" includes every step in a criminal action, from its commencement to its final determination by appellate review or until defendant begins to serve his sentence without pursuing an appeal or until the action is dismissed.

The inference in McIntyre and Smith that "prosecution" is the equivalent of "trial" and that only the "prosecution" (trial) is saved by G.S. § 90-113.7, would impel a determination that the legislature intended to amend G.S. § 7A-272 so as to vest the Superior Courts with original jurisdiction to try misdemeanors in these possession of marijuana offenses arising before 1 January 1972. We do not think the legislature intended such a strained effect in either the restriction of the saving clause or the change in jurisdiction by inference.

"Frequently, statutes repealing statutes relating to crimes contain saving clauses as to crimes committed prior to the repeal. Where the repealing statute contains a saving clause as to crimes committed prior to the repeal, or as to pending prosecutions, the offender may be tried and punished under the old law. In such case, the crime is punishable under the old statute although no prosecution is pending at the time the new statute goes into effect." 50 Am.Jur., Statutes, § 572, p. 571.

G.S. § 90-113.7(a), containing the saving clause, appears at the end of Article 5 known as the "North Carolina Controlled Substances Act." This is the normal placement of a saving clause when the legislature intends for it to refer to all of the preceding sections of the Article.

It appears to us that the legislature, as it had a right to do, specifically provided that the amendment to the punishment statute should not apply to persons who violated the law prior to 1 January 1972, regardless of when such person is tried or his appeal heard. G.S. § 90-113.7 provides in section (a):

"Prosecutions for any violation of law occurring prior to January 1, 1972 shall not be affected by these repealers, or amendments, or abated by reason, thereof."

To make the meaning doubly clear, the legislature went further and provided in the negative that the amended and rewritten Article shall apply only to violations of the law occurring after 1 January 1972. Section (d) of G.S. § 90-113.7 provides:

"The provisions of this Article shall be applicable to violations of law, seizures and forfeiture, injunctive proceedings, administrative proceedings, and investigations which occur following January 1, 1972."

Even though the question of punishment has not been raised upon appeal, we agree that, if the maximum permissible punishment has been exceeded, the court should ex mero motu take some action to *404 remedy the situation. However, we are of the opinion that the portions of the statute quoted above do not allow the benefits of the reduced sentence to persons who violated the law prior to 1 January 1972. This view is consistent with the opinions in State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 and State v. Pardon, 272 N.C. 72, 157 S.E.2d 698. Spencer was concerned with an amendment to G.S. § 20-174.1(b) which was not limited in its time of application. Pardon was concerned with an amendment to G.S. § 14-335 which was not limited in its application.

We hold that defendant had a fair trial, free from prejudicial error, and that the sentence imposed is within the limits allowed by the applicable law.

No error.

VAUGHN, J., concurs.

HEDRICK, J., concurs in part and dissents in part.

HEDRICK, Judge (concurring in part and dissenting in part).

While the prosecution of the defendant for the violation of the narcotic laws occurring prior to 1 January 1972 was not affected by the 1971 Act, in my opinion the principles enunciated in State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967), and followed in State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970), State v. McIntyre, 13 N.C.App. 479, 186 S.E.2d 207 (1972), and State v. Smith, N.C.App., 186 S.E.2d 600 (1972), are controlling, and the defendant has been convicted only of a misdemeanor. I vote to modify the judgment so as to reduce his sentence of imprisonment from four years to imprisonment for six months in the custody of the Commissioner of Corrections.