103 S.E.2d 846 (N.C. 1958), 582, State v. Cooke

Docket Nº:582
Citation:103 S.E.2d 846, 248 N.C. 485
Party Name:STATE, v. Phillip COOKE. STATE v. WOLFE. STATE v. George SIMKINS,Jr. STATE v. Joseph STURDIVENT. STATE. v. Samuel MURRAY. STATE v. Elijah H.HERRING.
Case Date:June 04, 1958
Court:Supreme Court of North Carolina

Page 846

103 S.E.2d 846 (N.C. 1958)

248 N.C. 485



Phillip COOKE.






George SIMKINS,Jr.






Samuel MURRAY.




No. 582

Supreme Court of North Carolina.

June 4, 1958

Page 847

Malcolm B. Seawell, Atty. Gen., and Claude L. Moody, Asst. Atty. Gen., for the State.

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Annie Brown Kennedy, Harold L. Kennedy, Winston-Salem, William A. Marsh, Jr., and C. O. Pearson, Durham, for defendant appellants.

RODMAN, Justice.

The cases were, without objection, consolidated for trial in the Superior Court.

Before pleading to the merits in the Superior Court, defendants renewed their motions to quash as originally made in the Municipal-County Court. The motions made in apt time were overruled by the court.

Before considering the merits of the cases, we must ascertain if defendants were properly called upon to answer the criminal charges leveled against them. The motions to quash assign three reasons why defendants should not be called upon to answer the allegation that they violated the criminal laws of the State of North Carolina.

State v. Cooke, 246 N.C. 518, 98 S.E.2d 885, is relied upon for two of the three reasons assigned. An examination of that case is necessary to assay the merits of the motions. The crime with which defendants stand charged is a misdemeanor punishable by fine of $50 or imprisonment for thirty days, G.S. § 14-134. The Municipal-County Court has [248 N.C. 488] jurisdiction of the offense charged. In December 1955 these defendants were charged in warrants issuing from that court with trespassing on the property of Gillespie Park Golf Course. They were convicted and appealed to the Superior Court. That court's jurisdiction of the cases then before it was derivative and not original. In the exercise of its derivative jurisdiction, it was confined to an inquiry as to the truth of the charges contained in the warrants issuing from the Municipal-County Court. It could not, in the exercise of that jurisdiction, try defendants for a different crime. Nevertheless, the warrants were amended in the Superior Court to charge defendants with a trespass on the property of Gillespie Park Golf Club, Inc. Defendants were convicted of the crime charged in the amended warrants. Defendants appealed their conviction to this Court. We held that the amended warrant, by substituting another property owner, charged a different crime from the crime originally charged, and for that reason the Superior Court could not, in the exercise of its derivative jurisdiction, try defendants on the new criminal charge.

Since the conviction by a court without jurisdiction to hear and determine the guilt or innocence of defendants was a nullity and the sentence imposed void, defendants could thereafter be tried when properly charged in a court having jurisdiction. State v. Hicks, 233 N.C. 511, 64 S.E.2d 871, certiorari denied 342 U.S. 381, 72 S.Ct. 56, 96 L.Ed. 629. It is manifest there is here no double jeopardy. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, on which defendants rely, has no application to the facts here presented. Double jeopardy is a valid defense when established by the facts. N.C. Constitution, Art. I, sec. 17; State v. Mansfield, 207 N.C. 233, 176 S.E. 761. Where not disclosed by allegations of the bill or warrant, it is not a ground to quash.

In closing the opinion in the previous appeal, the writer, author of the opinion said: 'Defendants may, of course, now be tried under the original warrant since the court was without authority to allow the amendment changing the crime charged; or they may be tried on bills found in the Superior Court for the crime attempted to be charged by the amendment.' [246 N.C. 518, 98 S.E.2d 888.]

The last clause of that opinion is also relied on in the motion to quash. The statement, accurate as to most of the counties of the State, is inaccurate with respect to Guilford and the other counties enumerated in the proviso to G.S. § 7-64. The Legislature, in the exercise of its discretion,

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has denied to the Superior Court sitting in the counties named in the proviso to G.S. § 7-64 the right to exercise concurrent jurisdiction with inferior courts in the trial of misdemeanors. Because of the limitations so imposed on the jurisdiction of the Superior Court of Guilford County, it could not exercise original jurisdiction of the [248 N.C. 489] crime charged, namely, trespass after being forbidden, and if defendants were to be prosecuted for the trespass presently charged, the prosecution had to originate in a court inferior to the Superior Court. This is made clear in the concurring opinion of Justice Parker, who said: 'It seems plain that a verdict of conviction or acquittal on the warrants in this case as drawn would not be a bar to the new warrants in the form to which they were changed by the amendments.'

The third and final reason assigned for quashing the warrants is the refusal of the court to take judicial notice of a judgment in a suit by defendants against the City of Greensboro, the Greensboro City Board of Education, and Gillespie Park Golf Club, Inc. (Simkins v. City of Greensboro, D.C., 149 F.Supp. 562) which adjudged the plaintiffs in that suit had been denied the privilege of using the property involved in that litigation because of their color or race. A motion to quash is a proper method of testing the sufficiency of the warrant, information, or bill of indictment to charge a criminal offense. It is not a means of testing the guilt or innocence of the defendant with respect to a crime properly charged. 'The court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence aliunde the record, the motion must be denied. ' State v. Cochran, 230 N.C. 523, 53 S.E.2d 663, 665; Richardson v. State, 109 Tex.Cr.R. 148, 4 S.W.2d 79; 27 Am.Jur. 695.

Since none of the reasons nor all combined sufficed to sustain the motion to quash, the court correctly overruled the motion and put defendants on trial for the offense with which they were charged.

To invade property in the possession of another is a crime under our laws. The severity of the punishment for such invasion is measured by the character of the entry. But the essential ingredient in the crime is possession by the person named in the warrant. If the possession is actual, the State need only establish that fact, but if the State fails to establish...

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