State v. Lee

100 S.E.2d 372 (1957)

247 N.C. 230

STATE v. David Haram LEE.

No. 511.

Supreme Court of North Carolina.

November 20, 1957.

*373 George B. Patton, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

E. R. Temple, Smithfield, for defendant, appellant.

PARKER, Justice.

The State's evidence shows that the defendant was operating his automobile upon a public highway within the State in a drunken condition at a terrific speed, and that an elderly constable, who attempted to apprehend him, was forced from, or ran off, the highway, and was killed.

Defendant's assignment of error that the judgment of the court was the infliction of cruel or unusual punishment within the meaning of Art. I, Sec. 14, of the State Constitution, is overruled. G.S. § 20-179 fixes no maximum period of imprisonment as punishment for the first offense of a violation of G.S. § 20-138, and it is well settled law in this jurisdiction that when no maximum time is fixed by the statute an imprisonment for two years will not be held cruel or unusual punishment, as prohibited by Art. I, Sec. 14, of the State Constitution. State v. Driver, 78 N.C. 123; State v. Miller, 94 N.C. 904; State v. Farrington, 141 N.C. 844, 53 S.E. 954; State v. Parker, 220 N.C. 416, 17 S.E.2d 475; State v. White, 230 N.C. 513, 53 S.E.2d 436. The judgment entered in this case was within the limits authorized by G.S. § 20-179. State v. Stone, 245 N.C. 42, 95 S.E.2d 77; State v. White, 246 N.C. 587, 90 S.E.2d 772.

Defendant also invokes the 8th Amendment to the U. S. Constitution, with its prohibition of cruel and unusual punishment. This amendment is a limitation upon the Federal Government, and not upon the States. Collins v. Johnston, 237 U.S. 502, 510, 35 S. Ct. 649, 59 L. Ed. 1071, 1079; Pervear v. Commonwealth of Mass., 5 Wall. 475, 72 U.S. 475, 18 L. Ed. 608; Barron v. City of Baltimore, 7 Pet. 242, 243, 8 L. Ed. 672; State v. Blake, 157 N.C. 608, 72 S.E. 1080.

The indeterminate sentence imposed was authorized by G.S. § 148-42.

Defendant's other assignments of error have been examined, and they are without merit.

In the bill of indictment the defendant's name is given as David Lee. The case on appeal, which was settled by Judge Seawell, is entitled State v. David Haram Lee. The record states that the defendant David Haram Lee tendered to the solicitor his statement of the case on appeal, which was signed by E. R. Temple, his attorney of record in this Court.

In the trial below we find

No error.