Summary
In S. v. Ray, 122 N.C. 1097, it was held that the act of 1895, ch. 75, sec. 5, providing that appeals to the Supreme Court may be prosecuted from the judgments of said criminal courts in the same manner as from the Superior Courts, was unconstitutional, and that decision applies equally to the same act, ch. 156, sec. 5. Tate v. Comrs., 122 N.C. 661.
Summary of this case from State v. HinsonOpinion
(Decided 22 February, 1898.)
Courts — Superior and Inferior Courts — Appeal — Jurisdiction — Constitutional Law.
1. Appeals can come to this Court only through the Superior Courts; and hence, section 5 of chapter 75, Acts of 1895, providing that appeals lie from a circuit criminal court, established by that act, direct to this Court is in derogation of the constitutional provisions in regard to the Superior Courts.
2. Where an appeal is improvidently taken from an inferior court direct to this Court, it will be dismissed and the appellant will be remitted to his right to certiorari from the Superior Court and to an appeal from the latter if said appeal becomes necessary and desirable.
(1098) INDICTMENT for keeping a bawdy house, tried before Ewart, J., at July Term, 1897, of the Circuit Criminal Court for BUNCOMBE. The court was asked to charge the jury that the Criminal Circuit Court had no jurisdiction of his case for the reason that the Legislature, at its session of 1895, had given the jurisdiction of the offense charged in the indictment to the mayor of the city of Asheville, it appearing in the proof offered by the State that the offense, if any offense had been committed, was committed in Asheville. This instruction was refused. There was a verdict of guilty; motion in arrest of judgment on the ground that the court could not proceed to judgment for want of jurisdiction. Motion overruled. The judgment of the court was that the defendant be confined in the common jail of Buncombe for six months, and the defendant appealed.
Zeb V. Walser, Attorney-General, for the State.
F. A. Sondley and E. D. Carter for defendant.
Section 3, chapter 75, Laws 1895 (by which act the Criminal Circuit Court of Buncombe, Madison, Haywood, and Henderson counties was created) confers upon said court (1) exclusive original jurisdiction of all crimes, misdemeanors, and offenses committed within the counties composing said districts, fully and to the same extent as the Superior Courts of the State, and (2) exclusive appellate jurisdiction of all offenses tried and determined before a justice of the peace in said counties. In Rhyne v. Lipscombe, ante, 650, we have held the first provision to be within the purview of section 12, Article IV, of the Constitution, but the second provision was held void, being in (1099) conflict with section 27 of the same article which provides that the appeal lies from justices of the peace in both civil and criminal actions to the Superior Court of the county. Section 5 of said chapter 75 provides that appeals like from said criminal court direct to this Court, but in the case just cited we have felt constrained to hold that this is in derogation of the constitutional provisions in regard to the Superior Courts from which alone appeals lie to this Court. While the power of this Legislature to create such courts has been sustained ( S. v. Jones, 97 N.C. 469; Ewart v. Jones, 116 N.C. 570), the right of a direct appeal from such courts to this Court has not before this term been ruled upon. The appeal having been improvidently taken, must be dismissed. The appellant will take his appeal by certiorari or otherwise, as he may be advised, to the Superior Court of Buncombe County, and from the judgment of that court, should it be adverse to him, an appeal can be prosecuted, should he so desire to this Court.
Appeal dismissed.
Cited: Malloy v. Fayetteville, ante, 482; Pate v. R. R., ante, 879; S. v. Hanna, post, 1077; S. v. Rumbough, post, 1104; S. v. Potsell, post, 1105; S. v. Hinson, 123 N.C. 756; Mott v. Comrs., 126 N.C. 876, 877, 881.
(1100)