State v. Morgan

99 S.E.2d 764 (1957)

246 N.C. 596

STATE v. Henry MORGAN.

No. 75.

Supreme Court of North Carolina.

September 18, 1957.

*765 George B. Patton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

Charles L. Abernethy, Jr., New Bern, for defendant, appellant.

PARKER, Justice.

Article 1, Section 13 of the North Carolina Constitution provides that "the Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal." This Court said in State v. Hall, 240 N.C. 109, 81 S.E.2d 189, 190, that Sections 12 and 13 of Article 1 of the State Constitution provide, "in essence, that 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 the sentence pronounced against him by the inferior court on his conviction for such misdemeanor." In support of such statement the Court cites State v. Thomas, 236 N.C. 454, 73 S.E.2d 283.

*766 G.S. § 15-177.1 provides that in cases of appeal to the Superior Court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial and de novo by a jury. State v. Meadows, 234 N.C. 657, 68 S.E.2d 406; State v. Williamson, 238 N.C. 652, 78 S.E.2d 763.

This Court said in State v. Sloan, 238 N.C. 547, 78 S.E.2d 312a case involving conflicting statutory provisions in respect to the jurisdiction within the corporate limits of the City of New Bern, or within a radius of five miles thereof, of the County Recorder's Court for Craven County and the Municipal Recorder's Court for the City of New Bern: "In 1919 the General Assembly enacted this statute" (Ch. 277, P.L.1919, now G.S., Ch. 7, Subchapter VI, Art. 24 and 25, which authorizes the creation of Municipal Recorders' Courts and County Recorders' Courts) "`to establish a uniform system of recorders' courts for municipalities and counties * * *.' Proceeding under this Act, the Board of Commissioners of Craven County, in 1921, created a County Recorder's Court for Craven County."

The County Recorder's Court for Craven County is a court inferior to the Superior Court in a constitutional sense. The question as to conflicting jurisdiction between the County Recorder's Court for Craven County and the Municipal Recorder's Court for the City of New Bern, as decided in State v. Sloan, supra, does not arise, because the non-tax-paid whisky was found in the house where the defendant lived, which house is situate in Number 3 Township, Craven County, near the village of Dover, and is outside the territorial limits of the jurisdiction of the Municipal Recorder's Court for the City of New Bern.

G.S. § 7-64 as to concurrent original jurisdiction between the Superior Court and courts of inferior jurisdiction is not applicable to Craven County. Therefore, by virtue of G.S. § 7-222 the County Recorder's Court for Craven County had, and has, exclusive, original jurisdiction of violations of G.S. § 18-48 and G.S. § 18-50 in the house where defendant was living near the village of Dover, Craven County, if any such violations occurred there.

G.S. § 18-50 makes the possession for the purpose of sale of illicit liquor a general misdemeanor. G.S. § 18-48 provides that the possession of whisky upon which the taxes imposed by the laws of Congress of the United States or by the laws of this State have not been paid is a general misdemeanor. Each statute creates a specific criminal offense, and a violation of G.S. § 18-48 is not a lesser offense included in 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; State v. Hall, supra; State v. Daniels, 244 N.C. 671, 94 S.E.2d 799.

The defendant was tried, convicted and sentenced in the County Recorder's Court for Craven County upon a warrant charging a violation of G.S. § 18-50. He appealed to the Superior Court. In the Superior Court he was tried upon a bill of indictment charging in the first count a violation of G.S. § 18-48, and in the second count a violation of G.S. § 18-50. The jury convicted him on the first count in the indictment, and acquitted him on the second count. From the judgment imposed, he appeals.

The defendant has not been tried, convicted and sentenced in the County Recorder's Court for Craven County for a violation of G.S. § 18-48. The Superior Court of Craven County has no original jurisdiction of the offense for which the defendant was convicted. State v. Lytle, 138 N.C. 738, 51 S.E. 66.

The jurisdiction of the Supreme Court is derivative. As the Superior Court of Craven County was without original *767 jurisdiction to try the defendant on a bill of indictment charging a violation of G.S. § 18-48, we have none. State v. Miller, 225 N.C. 213, 34 S.E.2d 143.

State v. Daniels, supra, is distinguishable, because G.S. § 7-64 is applicable to Wayne County, and the County Court of Wayne County and the Superior Court of Wayne County had concurrent original jurisdiction of statutory misdemeanors.

"In this Court, where the lack of jurisdiction is apparent, the Court may, and will, on plea, suggestion, motion or ex mero motu, stop the proceedings." State v. King, 222 N.C. 137, 22 S.E.2d 241, 243.

Since it appears on the face of the record proper that the sentence and conviction are void, because the Superior Court of Craven County had no original jurisdiction to try the defendant for an alleged violation of G.S. § 18-48, the judgment is arrested.

Judgment arrested.