State v. Cox, 215 N.C. 458 (1939)

April 19, 1939 · Supreme Court of North Carolina

215 N.C. 458

STATE v. L. F. COX.

(Filed 19 April, 1939.)

Criminal Law § 68c — Defendant may appeal to the Supreme Court only from final judgment.

After defendant’s appeal to the Superior Court had been docketed, the county court attempted to modify its judgment, conditioned upon the appeal being withdrawn, and thereafter the Superior Court remanded the case to the county court with provision that either the State or defendant might appeal. Upon trial in the county court after remand, the State appealed from judgment entered upon defendant’s plea of nolo contendere. Thereafter the Superior Court entered an order striking out the order remanding the case and restored the case to the docket for trial de novo. From this last order the defendant appealed to the Supreme Court. Held: In a criminal prosecution an appeal will lie to the Supreme Court only from a judgment on conviction or some judgment in its nature final, C. S., 4650, and the order appealed from is interlocutory and the appeal therefrom is dismissed.

Appeal by defendant from Armstrong, J., at November Term, 1938, of RowaN.

Criminal prosecution tried upon warrant charging tbe defendant with tbe unlawful possession of certain gambling devices, to wit, slot machines and tip books.

Tbe case was tried 28 July, 1938, in tbe Rowan county court, and there resulted in conviction and sentence. Tbe defendant gave notice of appeal to tbe Superior Court. On 2 September, and after tbe appeal bad been docketed in tbe Superior Court, tbe court of first instance attempted to modify its judgment, conditioned upon tbe appeal being withdrawn.

At tbe September Term, 1938, Rowan Superior Court, due to “some difference of opinion as to just what bad occurred in tbe county court,” an order was entered remanding tbe case to tbe county court for judgment, and providing “that either tbe State or tbe defendant may appeal from tbe judgment.” See 8. v. McKnight, 210 N. C., 57, 185 S. E., 439.

Tbe case was again called for trial in tbe county court on 17 November, 1938, at wbicb time tbe defendant entered a plea of nolo con-tendere. Judgment was entered tbereon, from wbicb tbe State gave notice of appeal to tbe Superior Court. See 8. v. Nichols, ante, 80.

At tbe November Term, 1938, Rowan Superior Court, an order was entered striking out tbe order of remand made at tbe September Term, as having been improvidently granted, and restoring tbe case to tbe docket for trial de novo.

From this order tbe defendant appeals, assigning errors.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

Walter Murphy and Walter Woodson for defendant.

Stacy, C. J.

The procedural right of appeal in criminal cases, C. S., 4650, is slightly different — less liberal perhaps — from what it is in civil actions. C. S., 638; S. v. Blades, 209 N. C., 56, 182 S. E., 714. It was said in S. v. Webb, 155 N. C., 426, 70 S. E., 1064, that “an ordinary statutory appeal will not be entertained except from a judgment on conviction or some judgment in its nature final.” Tbe order appealed from is interlocutory. S. v. Polk, 91 N. C., 652.

The fragmentariness of the appeal precludes a determination of the questions sought to be presented. Johnson v. Ins. Co., ante, 120. Mayhap tbe final judgment will be acceptable without appeal. At any rate, its correctness will presently be presumed. S. v. Rooks, 207 N. C., 275, 176 S. E., 752.

Appeal dismissed.