State v. Morris

70 S.E.2d 23, 235 N.C. 393, 1952 N.C. LEXIS 406

Opinion

BaeNHIll, J.

The record fails to disclose jurisdiction in the court below. S. v. Patterson, 222 N.C. 179, 22 S.E. 2d 267. As that court was without jurisdiction, in so far as this record discloses, we have none. S. v. Jones, 227 N.C. 94, 40 S.E. 2d 700. Therefore, the appeal must be dismissed on authority of S. v. Patterson, supra.

The Assistant Attorney-General who argued this case in behalf of the State, with commendable frankness, directed our attention to the insufficiency of the warrant. It fails to charge the commission of any criminal offense. However, it does not sufficiently appear that defendant was put on trial under the warrant rather than upon a bill of indictment as indicated by the charge of the court below. Therefore, we are without sufficient information to direct future proceedings in the court below further than to say that the court must dispose of the cause on the basis of the record there existing. If the defendant was put on trial under the warrant appearing in this record, the judgment entered must be arrested. S. v. Morgan, 226 N.C. 414, 38 S.E. 2d 166. On the other hand, if he was tried under a bill of indictment, he must comply with the judgment entered.

In the event it appears there was no bill of indictment, the solicitor may proceed to prosecute under new pleadings, if so advised. S. v. Johnson, 226 N.C. 266, 37 S.E. 2d 678; S. v. Morgan, supra.

Appeal dismissed.