State v. Shine, 149 N.C. 480 (1908)

Nov. 19, 1908 · Supreme Court of North Carolina

149 N.C. 480

STATE v. SHINE.

(Filed 19 November, 1908).

1. Indictment — Misdemeánor—“Feloniously"—“Second Offense”-L Surplusage.

When the word “feloniously” is used in a bill of indictment for an offense which the statute makes a misdemeanor, it, and a charge of “guilty of a second offense,” are regarded as sur-plusage.

2. Legislative Power — “Recorder’s Court” — Jurisdiction, Defined — . ■ Constitutional Law.

The Legislature has the constitutional power to. create a “recorder’s court” of a city, giving it original jurisdiction over all criminal offenses below that of felony, and declare them to lie ■ “petty misdemeanors.”

3. Same — Appeal—Trial by Jury.

When a legislative act creates a court of original jurisdiction for the trial of petty misdemeanors, and prescribes an appeal to the Superior Court, the constitutional right of trial by jury is preserved. '

4. Legislative Powers — Courts—Appeal—Grand Jury — Constitutional Law.

No valid objection can he raised to the constitutionality of a court created by the Legislature, preserving the right of appeal to the Superior Court, because a grand jury is not the first to pass upon a bill of indictment charging the offense.

ActioN tried before Long, J., and a jury, August Criminal Term, 1908, of Union. Defendant appealed.

Assistant Attorney-General Hayden Olement for tbe State.

' Redwine & Sikes for defendant.

Clare, O. J.

The defendant was tried in tbe Superior Court upon- appeal from tbe recorder’s court of Monroe. Tbe offense charged was retailing spirituous liquor. In tbe warrant, it was charged that tbe offense bad been committed unlawfully, • wilfully and “feloniously.” Tbe punishment prescribed is that of a misdemeanor (Rev. 3291) and that fixes tbe grade of tbe offense, State v. Fesperman, 108 N. C., 770; State v. Lytle, 138 N. C., 744. Tbe word “felon-iously” must therefore be treated as surplusage (State v. Edwards, 90 N. C., 710, and cases there cited) as must also the allegation that the' defendant was “guilty of a second offense.” The unnecessary words did not vitiate. State v. Fain, 106 N. C., 766; State v. Hart, 116 N. C., 978; State v. Darden, 117 N. C., 697. Besides, on appeal,, his Honor permitted the warrant to be amended, as he had the right to: do, Bev., sec. 1468, by striking out these superfluous words, and still “sufficient matter appears in the bill to permit the court to proceed to judgment,” Bev., sec. 3254, for an offense under Laws of 1905, ch. 497, see. 12.

Laws 1907, ch. 860, sec. 4 (5), creating the recorder’s-court of Monroe, provides that: ■ “Said court shall have exclusive original jurisdiction to hear and determine all Other-Criminal offenses committed, within- the county of Union below the grade of a felony as now defined by law, and all other such offenses committed within the county of Union are hereby declared to be petty misdemeanors.”

The Constitution, Art. IY, sec. 12, gives to the General Assembly express power to allot and distribute the jurisdiction below the Supreme Court, among the other courts prescribed in the Constitution, or which may be created by the-legislature, in such .manner as it may deem best, if done without conflict with other provisions of this Constitution. In pursuance of this ‘provision, the General Assembly created criminal courts, with right of appeal direct to this Court. This, we were compelled to hold, was “in conflict with other provisions of this Constitution.” Rhyne v. Lipscombe, 122 N. C., 650; Tate v. Commissioners, ib., 661.

In response to the public needs and á general public de-1 t mand for' courts that could make speedy ‘ and inexpensive1 trial of lesser offenses, the General Assembly thereupon iit-' stituted the policy of establishing courts for the trial fif petty-misdemeanors, without jury, preserving .the'right to'-a-jury-trial by giving tbe right of appeal with a trial de novo in tbe Superior Court.

Tliis was assailed by attacking tbe statute creating tbe Police Court of Asheville, but it was held constitutional in State v. Lytle, 138 N. C., 738, after tbe fullest consideration. It was there, held at pp. 743, 744, that tbe General Assembly, having transferred high misdemeanors into the grade of felony, was acting in the scope of its powers in classing all other misdemeanors as petty misdemeanors. This not only complies with the words and spirit of the Constitution, but a party who has been tried before one of these courts, with opportunity to answer, has been put to no disadvantage as compared with those whose first hearing is before the grand jury, where neither he nor his witnesses have any opportunity to be heard. The right of appeal preserves the right-of trial by jury. State v. Jones, 139 N. C., 618; and State v. Brittain, 143 N. C., 670, citing with approval State v. Lytle, supra. Though the defendant was sentenced to twelve months on the roads, he was convicted of a misdemeanor only, and had his trial before jury and judge in the Superior Court.

In State v. Baskerville, 141 N. C., 818, this Court sustained the constitutionality of the act creating the Police Court of Raleigh, which conferred upon such court “power and jurisdiction over all- misdemeanors committed within the corporate limits” of Raleigh or in Raleigh Township.

The Police Court of Winston was upheld in State v. Jones, 145 N. C., 460, though its constitutionality was assailed on the same ground, as here, that there was no indictment found by a grand jury. The offense there charged was a “petty misdemeanor for larceny of goods less than $10.00 in value.” The Court said the “same point has been fully discussed and settled in State v. Lytle, 138. N. C., 738.” We regard the matter as settled.

No error.