State v. Guffey

194 S.E.2d 827 (1973)

283 N.C. 94

STATE of North Carolina v. Homer Mack GUFFEY.

No. 10.

Supreme Court of North Carolina.

March 14, 1973.

*828 Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray, for the State.

*829 Charles Lawrence James, Chapel Hill, for defendant appellant.

MOORE, Justice.

"Except in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment." Constitution of North Carolina, Article I, Section 22. A defendant may be tried in superior court upon a warrant only if there has been a trial and appeal from a conviction by an inferior court having jurisdiction. G.S. § 15-137; G.S. § 15-140; State v. Evans, 262 N.C. 492, 137 S.E.2d 811 (1964).

In State v. Hall, 240 N.C. 109, 81 S.E.2d 189 (1954), this Court said that Sections 12 and 13 (now Sections 22 and 23) of Article I 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." State v. Cofield, 247 N.C. 185, 100 S.E.2d 355 (1957); State v. Morgan, 246 N.C. 596, 99 S.E.2d 764 (1957); State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).

The district court has exclusive original jurisdiction for the trial of misdemeanors. G.S. § 7A-272. The warrant in this case charges a violation of G.S. § 20-138 and of G.S. § 20-28(b); both are misdemeanors. There are no jury trials on criminal charges in district court, but upon appeal trial de novo in superior court is by jury. G.S. § 7A-196(b); G.S. § 15-177.1.

The record in this case fails to disclose that defendant was tried, convicted and sentenced in the district court for operating a motor vehicle on a public street or highway while the operator's license issued to him was permanently revoked, a violation of G.S. § 20-28(b). To the contrary, the judgment in district court recited only that defendant pled not guilty to a charge of driving under the influence, fourth offense, and was convicted and sentenced for that offense.

The Superior Court of Orange County has no original jurisdiction in a case involving a violation of G.S. § 20-28(b), one of the offenses for which defendant was convicted in that court. The jurisdiction of the superior court in such cases is derivative, and since the record does not disclose that defendant was convicted and sentenced in district court for this offense, the Superior Court of Orange County was without jurisdiction to try him, and the trial in the superior court for that charge upon the original warrant is a nullity. State v. Evans, supra.

"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 proceeding." State v. King, 222 N.C. 137, 22 S.E.2d 241 (1942).

It should be noted that this jurisdictional question was not raised before the able trial judge in the superior court, nor was it raised in the Court of Appeals. Hence, neither of those courts passed upon this question.

It is possible, of course, that defendant was regularly tried in the district court and was convicted on each count in the warrant but was only sentenced on the driving while intoxicated charge, in which event the district court could still impose sentence on the count charging a violation of G.S. § 20-28(b). It is also possible that he was only tried upon the driving while intoxicated count, in which event he could still be tried for a violation of G.S. § 20-28(b). We cannot speculate, however, as to what occurred in district court, but must base our decision upon the record as we *830 find it. State v. Patterson, 222 N.C. 179, 22 S.E.2d 267 (1942).

The record in this case is another example of the improper use of forms and the consequent failure to keep a full and complete record of the trial. Due to this failure, we are unable to determine that the superior court tried this defendant for a violation of G.S. § 20-28(b) under jurisdiction derived by appeal from the district courtthe only way in which such jurisdiction could have been acquired on that charge. Therefore, the judgment of the court on this count must be and is arrested.

The warrant in this case also charges defendant with operating a motor vehicle on a public street or public highway "while under the influence of intoxicating liquor, this being his fourth offense as the defendant was convicted of the third offense in the Superior Court Div., Rutherford County, on 7-3-1962." Defendant was convicted and sentenced in district court for a fourth offense. In superior court defendant was tried and convicted for a first offense of driving under the influence. Defendant now contends that upon his appeal to the superior court from the conviction and judgment pronounced by the district court for driving under the influence, fourth offense, that the trial in superior court had to be for the offense on which defendant had been convicted and that the superior court had no right to amend the warrant and try the defendant on the offense of driving under the influence, first offense. This contention is without merit. The trial court did not amend the warrant. Even if amended, the amendment would not have changed the nature of the offensedriving an automobile upon a public highway while under the influence of intoxicating liquorand would have related only to punishment. State v. Broome, 269 N.C. 661, 153 S.E.2d 384 (1967); State v. White, 246 N.C. 587, 99 S.E.2d 772 (1957); State v. Stone, 245 N.C. 42, 95 S.E.2d 77 (1956); G.S. § 20-179. A warrant charging defendant with a second or subsequent offense of driving under the influence would support a verdict of driving under the influence. State v. Stone, supra. The fact that the State did not introduce evidence of prior convictions went only to the question of punishment, enured to the benefit of defendant and was not prejudicial to him.

In addition to the questions discussed above, defendant in his petition for certiorari states: "That the defendant asks the Court to review the assignments of error brought forward by his counsel in the Court of Appeals and contends that there is merit therein." Defendant does not allege wherein the Court of Appeals erred in connection with other assignments of error brought forward by his counsel in that court. Therefore, there is nothing for us to review. State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968). Even so, we have examined these assignments and find them to be without merit.

For the reasons stated the decision of the Court of Appeals finding no error on the charge of operating a motor vehicle upon a public highway or street while under the influence of intoxicating liquor is affirmed.

The judgment on the charge of operating a motor vehicle on a public street or public highway while the operator's license issued to him was permanently revoked is arrested.

Modified and affirmed.