State v. Smith

148 S.E.2d 844 (1966)

267 N.C. 755

STATE v. Larry Wayne SMITH.

No. 823.

Supreme Court of North Carolina.

June 16, 1966.

*845 T. W. Bruton, Atty. Gen., Harry McGalliard, Deputy Atty. Gen., for the State.

L. T. Dark, Jr., Dark & Horton, Siler City, counsel for appellant.

PER CURIAM.

The charge in 3478 that the defendant broke and entered "a certain building occupied by one Chatham County Board of Education, a Government corporation," et cetera, is fatally defective in that it fails to identify the premises with sufficient certainty to enable the defendant to prepare his defense and offer him protection from another prosecution for the same incident. It appears from the brief that he actually entered the Henry Siler School in Siler City but under the general description of ownership in the bill, it could have as well been any other school building or other property owned by the Chatham County Board of Education. For this reason, the bill is hereby quashed as to the first count and the judgment vacated without prejudice to the right of the solicitor to send a proper bill. No judgment having been pronounced on the second count of larceny, a misdemeanor, the cause is remanded for that purpose.

Inasmuch as the valid judgment of eighteen months pronounced in 3549 was made to begin at the expiration of the sentence imposed in Case No. 3478, it is hereby ordered that a revised commitment be issued *846 by the Clerk of Superior Court of Chatham County, dated on the date of the original commitment, and effective upon that date, to be substituted for the commitments heretofore issued. The effect will be that the defendant will receive credit upon the new commitment for the time heretofore served upon the invalid commitment issued in Case No. 3478.

As to Case No. 3478 with respect to first count judgment vacated.

As to Case No. 3478 with respect to second count remanded.

As to Case No. 3549 modified and affirmed.

MOORE, J., not sitting.