State v. . Cain

Devin, J. The only question raised by the appeal is whether a sentence of not less than twenty-five nor more than thirty years for violation of C. S., 4236, is “cruel and unusual punishment” within the meaning of Art. I, sec. 14, of the Constitution of North Carolina. The decision of this Court in S. v. Swindell, 189 N. C., 151, is determinative of this appeal. Yiolation of C. S., 4236, is denounced as a felony, and the punishment prescribed is “imprisonment in the State’s Prison ... in the discretion of the court.” In the full and well considered opinion by Mr. Justice Clarlcson in S. v. Swindell, supra, it was held that a sentence of thirty years in that case under a statute (C. S., 4209), prescribing punishment by imprisonment “in the discretion of the court,” did not violate the constitutional prohibition against cruel and unusual punishment, citing S. v. Rippy, 127 N. C., 517. So that the sentence imposed by the able and upright judge, being within the limits of the discretion conferred by the statute, cannot be held by us to be improper. The uncontradicted evidence produced in the hearing before the'court below tended to show preparation and purpose for unusual and violent lawlessness. It was testified that defendant Cain had been for some time a member of the Proctor gang, had been given a year at Williamston, had pleaded guilty to a robbery at this term; that he had been implicated in numerous cases of breaking and entering, robberies and hold-ups; that there were seven or eight warrants out for him for robberies in Wilson, Red Springs, Raeford, and Greensboro, and for shooting a policeman in Greenville. In the stolen automobile in which the defendants were arrested were found two shotguns loaded with buckshot, four pistols, quantity of ammunition, nitroglycerine, soap, gloves, wire, drill punches, and other tools suitable for burglarious breaking. One of the officers who effected the capture testified that while they were searching the defendants, Cain attempted once *277 or twice to get Ms hand on his pistol, and that after they reached the jailer’s office Cain threatened his life if he ever got out. “He said if he ever got out and put his foot on the ground I belonged to him. He said I wouldn’t always have a guard or an army with me.” The defendants offered no evidence. The judgment of the court below is Affirmed.