#### STATE v. SAM WILLIAMS.

(Filed 17 January 1964.)

1. Larceny §§ 1, 10—

Larceny from the person is a felony, G.S. 14-72, and the punishment therefor can be imprisonment for ten years. G.S. 14-70.

*1732. Criminal Law § 131—

Where defendant seeks and obtains a new trial he takes the risk of conviction of the crime charged in ithe bill of indictment even though the 'Original conviction may have been for a less ofEemse embraced therein, and the fact that different judges impose different .punishment does not invalidate the sentence imposed at a second .trial.

3. Indictment and Warrant § 17—

The fact that the indictment charges that the crime was committed on. one day and the evidence sets ithe date five days thereafter ordinarily is not a material variance.

4. Criminal Law § 131—

The court is not compelled to give defendant credit for the period defendant spent in prison before a valid trial was had.

Appeal by defendant from *Campbell, J.,*July 29, 1963 Regular Schedule “A” Criminal Session of MeCKLENbuhg.

*Attorney General Bruton and Deputy Attorney General McGalliard for the State.*

*Plumides & Plumides by Michael G. Plumides for defendant appellant.*

Per Curiam.

Counsel for .appellant and the solicitor entered into a stipulation with respect to the crime with which defendant was charged, ithe 'crime of which he was convicted, and the dates on which the trials were had. This stipulation was not only insufficient to determine whether defendant had been denied constitutional rights but ■wais in direct conflict with the record proper as certified to< this Court.

Because o-f manifest inaccuracies in the stipulation, we -ordered the clerk of the .Superior Court -of Mecklenburg County to certify to this Court a complete transcript of the minutes and recoi’ds of his court as they relate to the trials of defendant on the charge of larceny in December 1962. The clerk has complied with our order.

The record 'as originally certified, supplemented as it now is, shows these facts: In February 1963 the grand jury returned ia true bill charging defendant with the larceny of property of a, value in excess of $200 from the person of Genevieve Wilkie; defendant wais .tried on that bill on 19 February 1963. The jury found defendant “guilty as charged.”

B.ased on that verdict the court imposed .a two-year prison sentence. Defendant gave notice of appeal to this Court. The appeal was dismissed at the May Term 1963 -because of 'defendant’s failure to perfect his appeal.

*174On 30 May 1963, acting under Art. 22, e. 15, General Statutes, defendant filed ia petition seeking a new trial because of a denial of ¡his OTnistitutional rights in that he 'had not been' afforded the advice of ■counsel. He .was given a hearing on 8 July 1963. The court found that he was not represented or advised 'that Ihe was entitled to counsel. It -ordered a new trial and directed that he have the benefit of counsel.

He was, iat the July 29, 1963 Session, again put on trial- on the bill of indictment returned in- February 1963. He wia© -again found “Guilty as charged.” A prison sentence of ten years wais imposed.

The record -refutes -the contention of counsel that defendant was first convicted -of stealing property valued at less than $200. He was in- each instance convicted -of the crime -of larceny from the person. That is a felony. G.S. 14-72. For th-at .crime the guilty person can be imprisoned for ten years. G.S. 14-70. *S. v.*Stevens, 252 N.C. 331, 113 S.E. 2d 577.

Even if defendant had in the first instance been convicted of a lesser degree of the crime charged, wihen- he sought and -obtained a new trial he took the risk of -conviction -of the crime .charged in the bill. *S. v. Correll,*229 N.C. 640, 50 S.E. 2d 717. The mere fact that different judges imposed different punishment does not invalidate the sentence imposed at the second trial.

The ibill of indictment charges the crime w-as committed on 12 December 1962. The evidence fixes the date -as 17 December 1962. The variance is immaterial. *S. v. Baxley,*223 N.C. 210, 25 S.E. 2d 621.

Defendant’s contention that the judge was compelled to- allow him credit for the period spent in prison before a valid trial wa.s had is also without merit.

Affirmed.