#### STATE v. JIMMY LEVERNE EFIRD.

(Filed 8 November, 1967.)

1. Homicide § 20—

Evidence in this case *held*sufficient for the jury *on*the question of defendant’s guilt of involuntary manslaughter.

2. Homicide § 30—

Punishment for involuntary manslaughter may be by fine or imprisonment not to exceed 10 years, or both, in the discretion of the court G.S. 14-2, G.S. 14-18.

3. Criminal Daw § 140—

Where the court enters separate judgments imposing sentences of imprisonment, and each judgment is complete within itself, the sentences run concurrently as a matter of law, in the absence of a provision to the contrary in the judgment, even though the sentences are for different grades of offenses requiring different places of confinement, G.S. 15-6.2.

Appeal by defendant from *Johnston, J.,*March 27, 1967 Session of STANLY.

Criminal prosecutions on (1) a bill of indictment charging involuntary manslaughter, to wit, the felonious killing of Elon Deli-liah Hall on January 6, 1967, (2) a warrant charging operation of a motor vehicle while under the influence of intoxicating liquor, and (3) a warrant charging the operation of a motor vehicle without a valid operator’s license. (In respect of the charges set forth in the two warrants, the trial in the superior court was *de novo*upon defendant’s appeal from judgments of the Stanly County Recorder’s Court.) The three cases were consolidated for trial. After trial, in which defendant was represented by court-appointed counsel, the jury returned a verdict of guilty as to each of said charges.

In the involuntary manslaughter case, the court pronounced judgment that defendant be confined in the State’s Prison for a term of five years. In the case in which defendant was charged with the operation of a motor vehicle while under the influence of intoxicating liquor, judgment imposing a sentence of two years was pronounced. In the case in which defendant was charged with operation of a motor vehicle without an operator’s license, judgment imposing a sentence of sixty days was pronounced.

Defendant excepted and appealed. Thereupon, orders were entered providing for the prosecution of defendant’s said appeal by his court-appointed counsel and for the payment by Stanly County of the costs of mimeographing the record and defendant’s brief incident to his appeal.

*731
      *Attorney General Bruton, Assistant Attorney General Melvin and Staff Attorney Costen for the State.*

*B. L. Brown, Jr., for defendant appellant.*

Per Curiam.

Defendant assigns as error (1) the denial of his motions for judgment as of nonsuit, and (2) the judgment (in respect of *quantum*of punishment) in the involuntary manslaughter case.

Defendant’s motions for judgment as of nonsuit were properly overruled. In brief, the State offered evidence tending to show: Oa January 6, 1967, about 11:45 p.m., defendant, who had no operator’s license, was operating a 1962 Chevrolet on Aquadale Road, á paved public highway in Stanly County. Notwithstanding protests of passengers in the car, he operated said car at a speed of 80 miles per hour in a 55-mile per hour speed zone. While so operating the car, defendant was under the influence of intoxicating liquor. The car operated by defendant failed to make a curve, ran off the road, crashed into a tree, etc., thereby causing Elon Deliliah Hall, one of the passengers, to sustain fatal injuries.

Defendant contends involuntary manslaughter is a “noninfamous” felony for which punishment was limited to two years under G.S. 14-2. This contention was considered and decided adversely to defendant in *State v. Swinney,*271 N.C. 130, 155 S.E. 2d 545. In *Swinney,*a judgment imposing a sentence of 5-7 years for involuntary manslaughter was pronounced. The Court held: “The defendant’s contention that involuntary manslaughter is a misdemeanor for which punishment cannot exceed two years is not sustained.” The dissent in *Swinney*did not relate to this holding.

It is noteworthy that G.S. 14-2, as amended' by Chapter 1251, Session Laws of 1967, now provides: “Every person who shall be convicted of *any felony*for which • no specific punishment is prescribed by statute shall be punishable by fine, by imprisonment for a term not exceeding ten years, or by both, in the discretion of the court.” (Our italics.)

Separate judgments, each imposing a prison sentence, were pronounced. Each judgment is complete within itself. Absent an order to the contrary, these sentences run concurrently as a matter of law. *State v. Duncan,*208 N.C. 316, 180 S.E. 595; *In re Parker,*225 N.C. 369, 35 S.E. 2d 169; *State v. Stonestreet,*243 N.C. 28, 89 S.E. 2d 734; *State v. Troutman,*249 N.C. 398, 106 S.E. 2d 572. It is noted that G.S. 15-6.2, based on Chapter 57, Session Laws of 1955, provides: “When by a judgment of a court or by operation of law a prison sentence runs concurrently with any other sentence a prisoner shall not be required to serve any additional time in prison solely *732because the concurrent sentences are for different grades of offenses or that it is required that they be served in different places of confinement.”

No error.