State v. Byrd

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167 S.E.2d 522 (1969)

4 N.C. App. 672

STATE of North Carolina v. Henry Clifford BYRD.

No. 6918SC141.

Court of Appeals of North Carolina.

May 28, 1969.

*523 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis, and Staff Atty. James E. Magner, Raleigh, for the State.

Gerald C. Parker, Greensboro, for defendant appellant.

MALLARD, Chief Judge.

"The superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the superior court from sentence pronounced against him by the inferior court on his conviction for such misdemeanor." State v. Hall, 240 N.C. 109, 81 S.E.2d 189. See also State v. Thomas, 236 N.C. 454, 73 S.E.2d 283, and State v. Banks, 241 N.C. 572, 86 S.E.2d 76.

The question of jurisdiction is not raised or discussed by the defendant or by the Attorney General in the briefs. The Court of Appeals will take notice ex mero motu of the failure of the record to show jurisdiction in the court entering the judgment appealed from. State v. Johnson, 251 N.C. 339, 111 S.E.2d 297. In this case it was the duty of the defendant appellant to see that the record on appeal was properly made up and transmitted to the Court of Appeals. State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262.

The record on appeal itself calls attention to the fact that there is a failure to show that the defendant was tried in, sentenced by, and appealed from the Municipal-County Court.

*524 We have carefully examined the exceptions and assignments of error presented on this record and are of the opinion that they present no prejudicial error in the trial in the Superior Court. If they did disclose error, because of an incomplete record, they are not properly before this court. State v. Hunter, 245 N.C. 607, 96 S.E.2d 840.

For the reasons herein stated and for the failure of the record to show jurisdiction, the appeal must be dismissed. State v. Banks, supra.

Appeal dismissed.

BRITT and PARKER, JJ., concur.