State v. Clayton
| Decision Date | 25 November 1959 |
| Docket Number | No. 363,363 |
| Citation | 111 S.E.2d 299,251 N.C. 261 |
| Parties | STATE, v. Gilbert CLAYTON. |
| Court | North Carolina Supreme Court |
Malcolm B. Seawell, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
W. M. Nicholson, James B. Ledford, L. Glen Ledford, Charlotte, and James J. Randleman, Elkin, for defendant, appellant.
Before pleading to the bill of indictment, defendant moved that the case be remanded to the Recorder's Court of Vance County for trial, for the reason that the Recorder's Court of Vance County had first taken cognizance of the case, and that said Recorder's Court had jurisdiction thereof to the exclusion of the Superior Court. The trial court denied the motion, and defendant assigns this as error.
Service of defendant's statement of the case on appeal to the Supreme Court was accepted by counsel for the State, and as counsel for the State filed no objections or exceptions thereto, or any countercase, defendant's statement of the case on appeal became, and constitutes the case on appeal to the Supreme Court. G.S. § 1-282; Coral Gables, Inc. v. Ayres, 208 N.C. 426, 181 S.E. 263.
In reference to the above motion, these facts appear from the case on appeal, and from a stipulation entered into between counsel for the State and the defendant:
Prior to the convening of the 4 May 1959 Special Criminal Term of the Superior Court of Vance County, a warrant was pending for trial in the Recorder's Court of Vance County charging defendant with the same offenses with which he is charged in the indictment upon which he was tried and convicted in the case sub judice. Defendant gave bond for his appearance in the Recorder's Court of Vance County, and his case had been set for trial in that court. On the call of his case for trial on the warrant in the Recorder's Court, defendant made a motion for a trial by jury, as provided for by Chapter 262, Public-Local Laws of North Carolina, Session 1917, relating to the Recorder's Court of Vance County, and at that time, pursuant to Chapter 316, 1957 Session Laws of North Carolina (), deposited with the clerk of that court a fee of twenty dollars.
On the afternoon of 4 May 1959 the State, without notice to defendant, took a nolle prosequi as to the case pending against defendant in the Recorder's Court of Vance County, and such an entry was made on the record of that court.
On the morning of 6 May 1959 the grand jury of Vance County Superior Court returned in open court as a true bill of indictment, the bill of indictment upon which defendant was tried and convicted in this case.
Defendant has not requested a refund of the twenty dollars deposited by him with the clerk of the Recorder's Court. However, it will be refunded to him at the end of May 1959.
Chapter 316, 1957 Sessions Laws of North Carolina, specifically provides that 'if the prosecuting officer shall enter a nolle prosequi, then said fee of twenty dollars ($20.00) shall be returned or repaid to the defendant.'
Chapter 158, Public-Local Laws of North Carolina, Session 1911, is an act which created and established a Recorder's Court to be designated as the Recorder's Court of the Town of Henderson, for the trial of petty misdemeanors committed in the Town of Henderson, Henderson Township, Vance County. The General Assembly at the same session amended Public-Local Act, Chapter 158, by enacting Public-Local Act, Chapter 614, which struck out of Public-Local Act, Chapter 158, the designation of the Recorder's Court and its limited territorial jurisdiction in Vance County for the trial of petty misdemeanors, and inserted in lieu thereof words, which make Section 1 of Chapter 158 read as follows: 'A special court for the trial of petty misdemeanors committed in Vance County and to be designated as the 'Recorder's Court of Vance County, North Carolina' is hereby created and established.' We omit reference to the civil jurisdiction given by the Acts as immaterial.
Section 5(d) of Public-Local Act, Chapter 158, Public-Local Act, Chapter 614, both Acts enacted in the 1911 Session of the General Assembly, gives to the Recorder's Court of Vance County final, exclusive, original jurisdiction over a great number of criminal offenses, inter alia, assault and battery with a deadly weapon and malicious injury to real or personal property, both of which are misdemeanors in this jurisdiction. G.S. §§ 14-33 and 14-160. Section 5(g) of Public-Local Act, Chapter 158, Public-Local Act, Chapter 614, provides that every person convicted in the Recorder's Court of Vance County shall have the right to appeal to the Superior Court of Vance County, and upon such appeal the trial in the Superior Court shall be de novo.
Sections 2 and 14 of Article IV of the North Carolina Constitution authorize the General Assembly to provide for the establishment of courts inferior to the Superior Court. State v. Norman, 237 N.C. 205, 74 S.E.2d 602; Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57. This legislative power must now be exercised by the General Assembly through general acts because Section 29 of Article II of the State Constitution, which was adopted in 1916, specifies that 'the General Assembly shall not pass any local, private, or special act or resolution relating to the establishment of courts inferior to the Superior Court.'
G.S. § 7-64, which has been in force for many years, and was and is applicable to Vance County at all times relative to this case and now, reads: 7-64. Concurrent jurisdiction.--In all cases in which by statute original jurisdiction of criminal actions has been, or may hereafter be, taken from the superior court and vested exclusively in courts of inferior jurisdiction, such exclusive jurisdiction is hereby divested, and jurisdiction of such actions shall be concurrent and exercised by the court first taking cognizance thereof.'
The Recorder's Court of Vance County and the Superior Court of Vance County have concurrent jurisdiction over the two offenses charged against the defendant. The Recorder's Court of Vance County having first taken cognizance of these offenses, it is well settled it had jurisdiction thereof to the exclusion of the Superior Court of Vance County before the State made an entry of nolle prosequi in the case against the defendant on the record of the Recorder's Court of Vance County. G.S. § 7-64; State v. Reavis, 228 N.C. 18, 44 S.E.2d 354
The question confronting us for decision is whether, as between the Recorder's Court of Vance County and the Superior Court of Vance County, Courts of concurrent jurisdiction of the offenses of assault with a deadly weapon and malicious injury to personal property, the Recorder's Court of Vance County in which the prosecution of the defendant for assault with a deadly weapon and malicious injury to personal property was first instituted loses its jurisdiction by the entering before trial of a nolle prosequi therein on the record of the Recorder's Court, so that the Superior Court of Vance County may thereafter acquire jurisdiction of the same offenses. In the consideration of this question, we are advertent to the familiar principle of law, specifically affirmed in G.S. § 7-64 as to criminal actions, that where courts have concurrent jurisdiction, the court first acquiring jurisdiction of a case or controversy, its power being adequate to the administration of complete justice, retains its jurisdiction of the case or controversy, and may dispose of the whole case or controversy, and no court of co-ordinate authority is at liberty to interfere with its action. This principle is essential to the orderly administration of the law, and is enforced to avoid unseemly, expensive, and dangerous conflicts of jurisdiction and process. Childs v. Martin, 69 N.C. 126; Haywood v. Haywood, 79 N.C. 42; State v. Williford, 91 N.C. 529; State v. Reavis, supra; 14 Am. Jur., Courts, Sec. 243; 21 C.J.S. Courts § 492.
An exhaustive examination on our part has shown that the cases on the subject are not numerous, and are not entirely in harmony. The most accurate statement we have found of the question for decision is set forth in an annotation in 117 A.L.R. page 424 (1938), which is not referred to in the briefs of counsel for the State and for the defendant, and is as follows:
'Compare Coleman v. State (1904) 83 Miss. 290, 35 So. 937, 64 L.R.A. 807, 1 Ann.Cas. 406, infra.'
This annotation states it is not concerned with the subject of former jeopardy. The words quoted from the annotation 'and in the absence of a statutory provision such as that referred to above' have reference to some of the cases included in the annotation 'decided under a statutory provision expressly making a dismissal of a prosecution for a misdemeanor a bar to another tion for the same misdemeanor.'
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