State v. Fisher

154 S.E.2d 333 (1967)

270 N.C. 315

STATE v. John FISHER and Bradford Little.

No. 665.

Supreme Court of North Carolina.

May 10, 1967.

*335 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwyn, for the State.

D. F. McGougan, Jr., Tabor City, for defendant appellants.

PARKER, Chief Justice.

Defendant Fisher assigns as error the denial of the motion by both Little and himself to remand the proceeding back to the Recorder's Court of Columbus County for a jury trial. Little does not appeal.

Defendant Fisher in his brief contends, and the State in its brief admits, that the Recorder's Court of Columbus County and the Superior Court of Columbus County have concurrent jurisdiction over all misdemeanor cases arising in Columbus County.

G.S. § 7-64 reads in relevant part:

"In all cases in which by statute original jurisdiction of criminal action has been, or may hereafter be, taken from the superior court and vested exclusively in courts of inferior jurisdiction, such exclusive jurisdiction is hereby divested, and jurisdiction of such actions shall be concurrent and exercised by the court first taking cognizance thereof."

This statute applies to Columbus County.

*336 We have held repeatedly and uniformly, and G.S. § 7-64 expressly states, in criminal actions where two courts have concurrent jurisdiction the court first acquiring jurisdiction of a case, its power being adequate to the administration of complete justice, retains its jurisdiction of the case and may dispose of the whole case, subject to appellate review, and no court of co-ordinate authority is at liberty to interfere with its action. This principle is essential to the orderly administration of the law, and is enforced to avoid unseemly, expensive and dangerous conflicts of jurisdiction and process. State v. Parker, 234 N.C. 236, 66 S.E.2d 907, and cases cited; State v. Reavis, 228 N.C. 18, 44 S.E.2d 354; State v. Everhardt, 203 N.C. 610, 166 S.E. 738; 1 McIntosh, N.C. Practice and Procedure, 2d ed., § 162; 20 Am.Jur., Courts, § 128; 21 C.J.S. Courts § 492. See also, State v. Clayton, 251 N.C. 261, 111 S.E.2d 299.

The Recorder's Court of Columbus County took jurisdiction over the offenses charged in the warrant in the instant case against defendants before the Superior Court of Columbus County did, and both offenses charged in the warrant were misdemeanors, to wit: an assault upon I. A. Matthews with deadly weapons, to wit, a rifle and a shotgun, with the felonious intent to kill and murder him, State v. Gregory, 223 N.C. 415, 27 S.E.2d 140; State v. Braxton, 265 N.C. 342, 144 S.E.2d 5, and damage to personal property of I. A. Matthews, G.S. § 14-160. The warrant does not charge "a wanton and malicious" injury to personal property. Consequently, the Recorder's Court of Columbus County acquired exclusive jurisdiction over the subject matter of the case set forth in the warrant to proceed further in the case.

It is well established law that the parties cannot, by consent, give a court jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver or estoppel. Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673, and the numerous cases there cited; In re Custody of Sauls, N.C., 154 S.E.2d 327; 20 Am.Jur.2d, Courts, § 95; 21 C.J.S. Courts § 85; 1 Strong's N.C. Index, Courts, § 2. Where a court lacks jurisdiction over a party, see 20 Am.Jur.2d, Courts, § 97.

Jurisdiction is essential to a valid judgment. Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757. The Superior Court of Columbus County was without jurisdiction to render the judgment of imprisonment for eighteen months as to Fisher on the first count in the indictment, and the verdict and judgment are vacated. Jurisdiction to try the charge of assault with deadly weapons, to wit, a rifle and a shotgun, upon I. A. Matthews with intent to kill and murder him is vested in the Recorder's Court of Columbus County.

The warrant in the instant case defectively charges damage to personal property of I. A. Matthews, a violation of G.S. § 14-160. The indictment in the instant case in the second count defectively charges damage to real property of I. A. Matthews, a violation of G.S. § 14-127two different offenses. All the evidence in the case showed damage to a building. The Superior Court of Columbus County first took jurisdiction over the offense defectively charged in the second count in the indictment of an injury to a building, real property.

The judgment on the second count in the indictment is arrested, ex mero motu, for the reason that the second count in the indictment is fatally defective in failing to charge a malicious injury to real property, G.S. § 14-127, and the verdict as returned on the second count in the indictment of "guilty of malicious injury to real property of $10.00 or less" is not sufficient to support the judgment on the second count in the indictment, a fatal defect appearing *337 on the face of the record proper. State v. Barefoot, 254 N.C. 308, 118 S.E.2d 758.

Judgment on the first count in the indictment vacated. Judgment on the second count in the indictment arrested.