State v. Cox

• Decision Date: 01 November 1939
• Docket Number: 361.
• Citation: 5 S.E.2d 125,216 N.C. 424
• Parties: STATE v. COX.
• Court: North Carolina Supreme Court

5 S.E.2d 125

216 N.C. 424

STATE v. COX.

No. 361.

Supreme Court of North Carolina

November 1, 1939

This is a criminal prosecution tried upon warrant charging the defendant with the unlawful possession of certain gambling devices, to wit, slot machines and tip books.

The Court below adjudged that all proceedings in the county court and all proceedings in the Superior Court subsequent to the docketing of defendant's appeal from the original judgment of the Rowan County Court were void and entered judgment affirming the original judgment of the Rowan County Court and dismissing the defendant's appeal. The defendant excepted and appealed.

Walter Murphy, W. C. Coughenour, and Walter Woodson, all of Salisbury, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton Asst. Attys. Gen., for the State.

BARNHILL Justice.

The pertinent facts are fully set forth in the opinion on the former appeal in this cause. State v. Cox, 215 N.C 458, 2 S.E.2d 370. After defendant's former appeal was dismissed by this Court, State v. Cox, supra, the Court below, at the May Term, 1939, after finding the preliminary facts outlining the history of the case, entered judgment as follows:

"The Court is of the opinion that the purported judgment of the Rowan County Court entered September 2, 1938, after the defendant's appeal from the said judgment of July 29 1938, has been docketed in the Superior Court of Rowan County, and that the order of the Superior Court of Rowan County entered at September Term, 1938, remanding the case in the Rowan County Court, and that the subsequent proceedings in the Rowan County Court and its purported judgment of November 17, 1938, and that the State's purported appeal from said purported judgment, are void; and the Court is further of the opinion that this cause has been and is now before this Court upon the defendant's said appeal from the judgment entered by the Rowan County Court on July 29, 1938, upon the defendant's plea of nolo contendere, not for trial de novo, but to view and determine the questions as to whether the facts charged and admitted by the plea of nolo contendere constitute an offense under the Constitution and laws of North Carolina and as to whether the judgment of the Rowan County Court entered July 29, 1938, is void, in whole or in part, as being beyond the power and jurisdiction of the Rowan County Court. See State v. Warren, 113 N.C. 683, 18 S.E. 498.

"The Court, upon consideration of the defendant's appeal from the judgment of the Rowan County Court entered July 29, 1938, is of the opinion that the facts charged in the warrant and admitted by the plea of nolo contendere, support and warrant in law said judgment of July 29, 1938, entered by the RowanCounty Court.

"It is, therefore, ordered, adjudged and decreed the judgment of the Rowan County Court dated July 29, 1938, by, and is, affirmed, and that the defendant's appeal therefrom be, and is, dismissed." By his appeal the defendant challenges the correctness of this judgment.

When the defendant appealed from the original judgment of the county court and the appeal was docketed in the Superior Court, the Rowan County Court was without jurisdiction to proceed further therein. The appeal vested jurisdiction in the Superior Court. Therefore, the judgment entered by the county court, 2 September, 1938, attempting to modify the original judgment, was void. State v. Goff, 205 N.C. 545, 172 S.E. 407, and cases there cited.

The appeal having been docketed in the Superior Court, the Judge Presiding, at term, had authority, upon satisfactory cause shown, and by consent, to remand the case to Rowan County Court for clarifying judgment or other proceedings. Thus, the order entered at the September Term, 19...