Ex parte Barnes

• Decision Date: 05 January 1938
• Docket Number: 75.
• Citation: 194 S.E. 499,212 N.C. 735
• Parties: Ex parte BARNES.
• Court: North Carolina Supreme Court

194 S.E. 499

212 N.C. 735

Ex parte BARNES.

No. 75.

Supreme Court of North Carolina

January 5, 1938

Certiorari from Superior Court, Wilson County; Clawson L. Williams Judge.

Petition by Rosa Lee Barnes for a writ of habeas corpus to release her from prison. To review a judgment refusing to release her petitioner brings certiorari.

Affirmed.

The statute providing that in counties where there "is" a special court for cities and towns, the jurisdiction of the general county court in criminal actions shall be concurrent with jurisdiction conferred upon special courts is in pari materia with statutes giving municipal recorder's court and general county court exclusive original jurisdiction of petty misdemeanors, and, when so construed, statute has a prospective purpose and does not refer only to special courts existing at time of its enactment, notwithstanding use of present tense. C.S. § 1541, subd. 3, as amended by Pub.Laws 1925, c. 32, § 3; C.S.Supp.1924, § 1608(m) (4), and subd. 5 as added by Pub.Laws 1924, Ex.Sess., c. 85, § 1.

Generally where a statute is expressed in general terms and in words of the present tense, it will be construed to apply not only to conditions existing at time of its passage, but it will also be given a prospective interpretation to apply to conditions coming into existence thereafter.

Connor & Connor, Thomas J. Moore, and Luke Lamb, all of Wilson, for petitioner.

A. A. F. Seawell, Atty. Gen., and Harry McMullan and T. W. Bruton, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The petitioner was on September 27, 1937, tried, convicted, and sentenced to imprisonment for six months by the municipal recorder's court of the town of Wilson upon a warrant charging her with a violation of section 13, c. 49, Pub.Laws 1937, in that she had in her possession alcoholic beverages upon which the taxes imposed by the laws of Congress of the United States and by the laws of the state had not been paid; the punishment for such offense being fixed by the statute as a fine and imprisonment in the discretion of the court.

The municipal recorder's court of the town of Wilson was, in the year 1937, created by an election under the provisions of chapter 277, Pub.Laws 1919, as amended, article 18, chapter 27, § 1536 et seq., of Consolidated Statutes, as amended, and began to function as such court prior to September 10, 1937.

Section 4, c. 277, Pub.Laws 1919, C.S. § 1541, subd. 3, reads:

"The court [Municipal Recorder's] shall have the following jurisdiction within the following named territory: * * *

3. Exclusive, original jurisdiction of all other criminal offenses committed within the corporate limits of such municipality and outside, but within a radius of two miles [changed to five miles by section 3, c. 32, Pub.Laws 1925] thereof, which are below the grade of a felony as now defined by law, and the same are hereby declared to be petty misdemeanors."

There is in Wilson county, in which the town of Wilson is situated, a general county court which was duly created in the year 1924 under the provisions of chapter 216, Pub.Laws 1923, article 24, chapter 27, § 1608 (f) et seq. of Consolidated Statutes Supp. 1924.

Section 13, of the Public Laws 1923, C.S. Supp.1924, § 1608 (m), reads:

"The general county court herein provided for, shall have the following jurisdiction in criminal actions within the county: * * *

4. * * * shall have the exclusive original jurisdiction of all other criminal offenses committed in the county below the grade of a felony as now defined by law, and the same are hereby declared to be petty misdemeanors."

Section 25, c. 216, Pub.Laws 1923, reads: "All laws and clauses of laws in conflict with this act are hereby repealed."

It is the contention of the petitioner that since the provisions of the act of 1919 and those of the act 1923, conferring jurisdiction on the municipal court and on the general county court, respectively, are in apparent conflict, as both courts are given exclusive original jurisdiction of criminal offenses below the grade of felony within the territorial jurisdiction of the municipal recorder's court, and since the subsequent act contains a general repealing clause, the municipal court was deprived of its jurisdiction of petty misdemeanors of the class in which the offense of which the petitioner was convicted falls. This contention may have been made with considerable force but for an amendment to chapter 216, § 13, Pub. Laws 1923, C.S.Supp.1924, § 1608 (m), which was made by section 1, chapter 85, Pub.Laws, Extra Session 1924, adding subdivision 5, and reads: "5. In counties in which there is a special court or courts for cities and towns, the jurisdiction of the general county court in criminal actions shall be concurrent with the jurisdiction conferred upon such special courts."

This amendment was enacted the same year, but prior to the creation of the general county court of Wilson county.

It is argued by the petitioner, however,...