State v. Johnson

111 S.E.2d 297 (1959)

251 N.C. 339

STATE v. James Alford JOHNSON.

No. 437.

Supreme Court of North Carolina.

December 2, 1959.

*298 Malcolm B. Seawell, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

H. F. Seawell, Jr., Carthage, for defendant appellant.

WINBORNE, Chief Justice.

In the light of what transpired in the Municipal Recorder's Court of Aberdeen and in Superior Court of Moore County as reflected by the foregoing statement of the case, the Supreme Court is impelled, ex mero motu, to inquire into the jurisdiction of the Municipal Recorder's Court of Aberdeen and the legality of proceedings had.

In this connection this Court has before it what purports to be a copy of Resolution of Board of Commissioners of The Town of Aberdeen, certified by Clerk of Municipal Recorder's Court of Aberdeen, establishing "by virtue of Chapter 7, Articles 24 and 29A, and other applicable Articles of the General Statutes of North Carolina," "the Municipal Recorder's Court of Aberdeen with jurisdiction as set forth in said chapter of the General Statutes, namely Chapter 7 * * * to attach as of 9:00 P.M., on Wednesday, August 6, 1956."

Assuming this to be the establishment and the vesting of jurisdiction of the Municipal Recorder's Court of Aberdeen, we turn to the pertinent provisions of General Statutes:

(1) Criminal jurisdiction is set forth in G.S. § 7-190;

(2) Provision for appeal to Superior Court is found in G.S. § 7-195, as follows: "Any person convicted of any offense of which the recorder has final jurisdiction may appeal to the superior court of the county from any judgment or sentence of the recorder, in the same manner as is now provided for appeals from courts of justices of the peace * * *"; and

(3) Pertaining to jury trial, G.S. § 7-204, it appears that "in all trials in the court, upon demand for a jury trial by the defendant or the prosecuting attorney representing the State, the recorder shall try the same as is now provided in actions before justices of the peace wherein a jury is demanded, and the same procedure as is now provided by law for jury trials before justices of the peace shall apply * * *."

Thus it appears that a jury trial may be had in the Municipal Recorder's Court of Aberdeen, and that from a conviction of any offense of which the recorder has final jurisdiction an appeal may be taken to the Superior Court of the county. Since neither course was followed, the Superior *299 Court was without authority to proceed to trial on the original warrant in this case. Hence the judgment from which appeal is taken is arrested, and the cause remanded to Superior Court of Moore County with direction to transmit and deliver the warrant issued against the defendant to the Municipal Recorder's Court of Aberdeen for further proceedings as to justice appertains and the law directs.

Judgment arrested and, in accordance with State v. Banks, 241 N.C. 572, 86 S.E.2d 76, and State v. Hunter, 245 N.C. 607, 96 S.E.2d 840.

Appeal dismissed.