State v. . Rhodes

180 S.E. 84, 208 N.C. 241, 1935 N.C. LEXIS 376

• Court: Supreme Court of North Carolina
• Decided: May 22, 1935
• Status: Published

Opinion

Stacy, O. J.

The “recorder’s court of New Hanover County” was established in 1909 as a special court for the trial of petty misdemeanors, with the right of “any person convicted in said court” to appeal to the Superior Court of New Hanover County, and it is provided that “upon such appeal the trial in the Superior Court shall be de novo.” Ch. 398, Public Laws 1909; S. v. Goff, 205 N. C., 545, 172 S. E., 407. Subsequent amendments to the statute, investing said court with limited civil jurisdiction, etc., are not now material. Ch. 217, Public-Local Laws 1911; ch. 179, Public-Local Laws, Extra Session, 1920 (repealed by ch. 2, Public-Local Laws 1921); ch. 132, Public Laws 1923.

The appeal provided for in the original act creating said recorder’s court is from the conviction and judgment entered thereon, and not from an order such as here challenged. S. v. Tripp, 168 N. C., 150, 83 S. E., 630. Hence, the Superior Court was without authority to entertain the “appeal,” unless treated as return to writ of certiorari. S. v. Tripp, supra.

The judgment, therefore, affirming the judgment of the recorder’s court will be stricken out and the cause remanded for further proceedings as to right and justice appertain and as the law provides.

Ib tbe subsequent proceedings, tbe following questions, upon wbicb we make no present rulings, may arise:

1. Does tbe verdict mean more tban guilty of simple assault? S. v. Lassiter, post, 251.

2. Is tbe suspended judgment, as rendered, valid? S. v. Edwards, 192 N. C., 321, 135 S. E., 37; S. v. Schlichter, 194 N. C., 277, 139 S. E., 448; S. v. Tripp, supra; S. v. Everitt, 164 N. C., 399, 79 S. E., 274; S. v. Hilton, 151 N. C., 687, 65 S. E., 1011; S. v. McAfee, 198 N. C., 507, 152 S. E., 391; Myers v. Barnhardt, 202 N. C., 49, 161 S. E., 715.

3. Had tbe defendant fully complied witb tbe terms of said suspended judgment at tbe time of tbe last order? S. v. Gooding, 194 N. C., 271, 139 S. E., 436; S. v. Hilton, supra.

4. Was tbe defendant given an opportunity to be beard in open court on tbe alleged violation of tbe terms of tbe suspended judgment ? S. v. Smith, 196 N. C., 438, 146 S. E., 73.

5. Was tbe order of execution warranted by tbe evidence? S. v. Hardin, 183 N. C., 815, 112 S. E., 593.

Error.