State v. Daniels

94 S.E.2d 799 (1956)

244 N.C. 671

STATE v. Johnnie DANIELS, Sr., and Johnnle Danlels, Jr.

No. 293.

Supreme Court of North Carolina.

October 31, 1956.

*801 J. Faison Thomson & Son, Goldsboro, for defendant Johnnie Daniels, Sr., appellant.

Atty. Gen. George B. Patton and Asst. Atty. Gen. Claude L. Love for the State.

BOBBITT, Justice.

The evidence offered by the State was amply sufficient to support the verdict. Indeed, defendant made no motion for judgment as in case of nonsuit. Moreover, careful consideration of the assignments of error relating to rulings on evidence and to the charge do not disclose any error of law deemed sufficiently prejudicial to warrant a new trial or to require particular discussion.

Appellant lays major emphasis upon assignments of error relating to the denial by the court of his plea in abatement and motion in arrest of judgment. These assignments *802 present a jurisdictional question, technical in nature, wholly unrelated to the guilt or innocence of appellant.

We agree with appellant's contention that under Ch. 697, Public-Local Laws of 1913, as amended by Ch. 346, Public-Local Laws of 1937, the County Court of Wayne County had jurisdiction of statutory misdemeanors. The Attorney General, with commendable diligence, discovered and has called to our attention the fact that the said 1937 Act amends the said 1913 Act by adding "after the words `common law' in line six of section four, the words `or by statute;'" when in fact the words "common law" appear in line twenty-six of section four and not elsewhere in section four of the said 1913 Act. Even so, it is manifest that the intent of the General Assembly was to confer upon the County Court of Wayne County jurisdiction of statutory as well as commonlaw misdemeanors. The reference to line six of section four rather than to line twenty-six of section four is obviously a clerical error, subject to correction by the Court in order to carry out the clear legislative intent. State v. Sizemore, 199 N.C. 687, 155 S.E. 724.

We agree with appellant's further contention that, by reason of G.S. § 7-64, the County Court of Wayne County and the Superior Court had concurrent original jurisdiction of statutory misdemeanors. It follows that if at the time of appellant's trial in the Superior Court on said bill of indictment there was pending in the County Court of Wayne County a criminal prosecution based on a warrant charging the identical criminal offense there would be sound basis for appellant's plea in abatement and motion in arrest of judgment. G.S. § 7-64; State v. Reavis, 228 N.C. 18, 44 S.E.2d 354; State v. Parker, 234 N.C. 236, 66 S.E.2d 907.

However, we are confronted by the fact that the warrant in the case pending in the County Court of Wayne County contains a single count, to wit, unlawful possession of nontax-paid whiskey for the purpose of sale, a violation of G.S. § 18-50, whereas the bill of indictment on which appellant was tried in the Superior Court contains a single count, to wit, unlawful possession of nontax-paid whiskey, a violation of G.S. § 18-48.

The statutory misdemeanors created by G.S. § 18-48 and by G.S. § 18-50 are separate and distinct offenses of equal degree. Each is a specific statutory misdemeanor, complete within itself; and a violation of G.S. § 18-48 is not a lesser degree of the offense defined in G.S. § 18-50. State v. McNeill, 225 N.C. 560, 35 S.E.2d 629; State v. Peterson, 226 N.C. 255, 37 S.E.2d 591. As stated by Ervin, J., in State v. Hall, 240 N.C. 109, 81 S.E.2d 189, 191: "The authority of the Peterson and McNeill cases on this precise point is not impaired in any degree by State v. Hill, 236 N.C. 704, 73 S.E.2d 894, * * *."

It appears from the foregoing that the only statutory misdemeanor of which the County Court of Wayne County acquired jurisdiction was that charged in said warrant, to wit, a violation of G.S. § 18-50, and that the Superior Court had original jurisdiction to proceed on bill of indictment to try appellant for a violation of G.S. § 18-48.

It is noted that the said warrant was dismissed in the County Court of Wayne County on 10 April, 1956. The inference is that the State elected to prosecute in the Superior Court on a bill of indictment charging a violation of G.S. § 18-48 rather than to prosecute in the County Court of Wayne County on the warrant charging a violation of G.S. § 18-50.

We conclude that the court below was correct in overruling appellant's plea in abatement and motion in arrest of judgment.

No error.

JOHNSON, J., not sitting.