State v. Banks, 241 N.C. 572 (1955)

March 2, 1955 · Supreme Court of North Carolina

241 N.C. 572

STATE v. CARL BANKS.

(Filed 2 March, 1955.)

1. Constitutional Law § 32—

The Superior Court has no jurisdiction to try an accused on the original warrant when it does not appear in the record that defendant was ever tried and convicted for the offense in the inferior court or that there was ,an appeal from the inferior court to the Superior Court.

2. Criminal Xiaw § 67—

Where the record fails to disclose jurisdiction in the court below, the Supreme Court acquires no jurisdiction by appeal, and the appeal must be dismissed. Rule 19 (1), Rules of Practice in the Supreme Court.

Appeal by defendant from Sharp, Special J., August Criminal Term, 1954, of BuNcombe.

The record shows that defendant was tried in the • Superior Court of Buncombe County on a warrant, purporting to have been issued by a deputy clerk of the Asheville Police Court, and found guilty of illegal transportation of whiskey, a misdemeanor; and that judgment was pronounced, from which defendant appeals. The errors assigned relate to the trial in the Superior Court.

While the warrant was returnable to the Asheville Police Court, it does not appear in the record that defendant was ever tried in that court or that there was an appeal therefrom to the Superior Court.

Attorney-General McMullan and Assistant Attorney-General Moody for the State.

Henry 0. Fisher for defendant, appellant.

Per Curiam.

“The Superior Court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior- court unless be is first tried and convicted for such misdemeanor in tbe inferior court and appeals to tbe Superior Court from sentence pronounced against bim by tbe inferior court on bis conviction for sucb misdemeanor. S. v. Thomas, 236 N.C. 454, 73 S.E. 2d 283.” S. v. Hall, 240 N.C. 109, 81 S.E. 2d 189.

“Tbe record fails to disclose jurisdiction in tbe court below. S. v. Patterson, 222 N.C. 179, 22 S.E. 2d 267. As tbat court was without jurisdiction, in so far as tbis record discloses, we bave none. S. v. Jones, 227 N.C. 94, 40 S.E. 2d 700. Therefore, tbe appeal must be dismissed on authority of S. v. Patterson, supra.” S. v. Morris, 235 N.C. 393, 70 S.E. 2d 23.

For such failure of tbis record to show jurisdiction, tbe appeal must be dismissed. Rule 19 (1), Rules of Practice in the Supreme Court, 221 N.C. 544 (553).

Appeal dismissed.