State v. Moore, 209 N.C. 44 (1935)

Dec. 11, 1935 · Supreme Court of North Carolina

209 N.C. 44

STATE v. JOHN MOORE.

(Filed 11 December, 1935.)

Criminal Daw G m: Courts A c — Evidence of conviction in municipal court held incompetent under statute upon trial in Superior Coui't.

The statute creating the municipal court in which defendant was convicted provided that the right of appeal should be the same as provided in case of appeals from justices of the peace, and that trial in the Superior' Court should be de novo, and the statute regulating appeals from justices of the peace provides that trial in the Superior Court shall be anew and without prejudice from the former proceedings. Upon defendant’s appeal the trial court admitted evidence of his conviction in the municipal court. Held: The evidence of his conviction was not without prejudice to defendant from the former proceedings, C. S., 4647, and defendant is entitled to a new trial.

Appeal by the defendant from McYlroy, J., at June Special Term, 1935, of Guileord.

New trial.

Attorney-General Seawell and Assistant Attorney-General Ailcen for the State.

Younce & Younce for defendant, appellant.

Schenck, J.

The defendant was bound to the municipal court of the city of Greensboro by a justice of the peace upon a warrant charging him with willfully refusing to support and maintain his illegitimate child, in violation of chapter 228, Public Laws of 1933. Upon trial in the municipal court the defendant was found guilty and judgment was pronounced, from which the defendant appealed to this Court, assigning errors.

Upon the trial in tbe Superior Court a State’s witness was allowed, over the objection of tbe defendant, to testify in effect tbat tbe defendant bad been tried in tbe municipal court and convicted, and by tbe final order of tbat court was required to pay to tbe prosecutrix $10.00 a week.

Section 7, chapter 651, Public Laws of 1909, by which tbe municipal court of tbe city of Greensboro is established, provides tbat, “Any person convicted in said court shall have tbe right of appeal to tbe Superior Court of Guilford County, as is now provided for appeals from judgments of justices of tbe peace, and upon such appeal tbe trial shall be de novo.” Section 4647, Consolidated Statutes, provides tbat, “In all cases of appeal (from judgments of justices of tbe peace to tbe Superior Court), tbe trial shall be anew, without prejudice from tbe former proceedings.”

Tbe testimony as to tbe conviction of tbe defendant and judgment pronounced in tbe municipal court, admitted in tbe trial in tbe Superior Court, was immaterial, incompetent, and not “without prejudice from tbe former proceedings,” and its admission, over bis objection, entitles tbe defendant to a new trial.

If it should be held competent to show tbe conviction and judgment in tbe municipal court in tbe trial in tbe Superior Court, no trial upon appeal from tbe municipal court could ever be wholly free from prejudice from tbe former proceedings. See Wells v. Odum, 205 N. C., 110.

Attention is called to tbe fact tbat tbe warrant as it now appears in tbe record, evidently after amendment, is inartificially drawn, and tbat further amendment might well serve to make more definite tbe charge.

New trial.