State v. Spurtin, 80 N.C. 362 (1879)

Jan. 1879 · Supreme Court of North Carolina

80 N.C. 362

STATE v. A. J. SPURTIN and others.

Appeal — Practice.

1. No appeal lies from the inferior courts directly to the supreme court.

2. An appeal will be dismissed where there is no bond tosécure the costs, or no order allowing a defendant to appeal without security.

(State v. Patríele, 72 N. C., 217; State v. Lane, 78 N. 0., 547, cited and . approved.)

INDICTMENT for a Misdemeanor tried at September Term, 1878, of Alleghany Inferior Court. The defendants were convicted, and from the judgment pronounced on the verdict they appealed to the supreme court. The statement of the case sets forth the facts proved on the trial and the prayer of defendants for special instructions which were refused. Upon the hearing in this court, a motion was made on behalf of the state -that the appeal be dismissed.

Attorney General, for the state.

Mr. R. F. Armfield, for the defendants.

Dillakd, J.

The appeal must be dismissed on two grounds:—

1. No bond to secure the costs of the appeal accompanies the record; nor was there any order of the court allowing the defendants to appeal without the usual security. State v. Patrick, 72 N. C., 217 ; Bat. Rev., ch. 33, §§ 111, 112.

2. No appeal is given by law from the inferior courts to the supreme court. The supreme court under the constitution of 1868 had the jurisdiction to' review on appeal any decision of the courts below upon any matter of law or legal inference. Art. IV, § 10. And under the statutes defining and regulating the right of appeal, the jurisdiction extended only to appeals from the superior courts. The amended constitution retains the same courts provided for in the constitution of ’68, and gives the legislature power to establish other courts inferior to the supreme court, and to parcel out the jurisdiction other than that pertaining to the supreme court, provide a proper system of appeals, and regulate by law the method of proceeding in the exercise of those powers in all the courts below the supreme court, so far as may not be in conflict with other provisions of the constitution. Art, IY, §§ 2, 12. Under our new constitution the legislature has created inferior courts, and as empowered in section 12 has parceled off to them a criminal jurisdiction, and provided a system of appeals to persons convicted in those courts, whereby the right of appeal is expressly given from the inferior to the superior courts. Acts 1876-77, ch. 154, § 10; ch. 292, § 1.

The clause of the constitution defining the jurisdiction above quoted, is the same in the new constitution as in that of 1868, and the language used is broad enough to take in appeals from the inferior courts, if the legislature should pass a law providing for appeals directly to the supreme court. But no such act has been passed, and therefore we conclude that no right exists to appeal from the inferior directly to the supreme court. The right of appeal is to the superior court where the trial is to be had de novo, and thence to this court..

It has been decided that no appeal lies for the state from the judgments of the inferior courts to the supreme court; and in the opinion of the court, the omission to provide such an appeal for the state 'Was not accidental, but of purpose and on sufficient reasons of public policy. State v. Lane, 78 N. C., 547. And so we think, the provision of a right of appeal to defendants to the superior instead of directly to the supreme court, was of purpose and consistent with the best interests of the convicts and the public as well. The appeal must be dismissed.

Per Curiam. Appeal dismissed.