State v. Dunlap

• Decision Date: 10 April 1912
• Citation: 74 S.E. 626,159 N.C. 491
• Parties: STATE v. DUNLAP.
• Court: North Carolina Supreme Court

74 S.E. 626

159 N.C. 491

STATE v. DUNLAP.

Supreme Court of North Carolina

April 10, 1912

Appeal from Superior Court, Union County; Whedbee, Judge.

Mack Dunlap, Jr., was convicted of petit larceny in the recorder's court, and from a conviction on appeal to the superior court he appeals. Affirmed.

Pub.Laws 1907, c. 860, as amended by Pub.Laws 1909, c. 683, giving the recorder's court jurisdiction of petty misdemeanors including larceny of property of value less than $20, was not contrary to the constitutional provision granting trial by jury.

J. J Parker, for appellant.

Attorney General Bickett and Assistant Attorney General Calvert, for the State.

BROWN J.

1. It is contended by the defendant that the recorder's court had no jurisdiction of the offense charged in the warrant. The recorder's court of the city of Monroe was created by chapter 860, Public Laws of 1907. By section 4 (5), the court was given "exclusive, original jurisdiction to hear and determine all other criminal offenses committed within the county of Union below the grade of felony as now defined by law, and all such offenses committed in the county of Union are hereby declared to be petty misdemeanors."

The statute was amended by chapter 683 of the Laws of 1909; the first section thereof providing: "That in all cases of larceny and receiving stolen property hereafter committed in the county of Union, where the value of the property alleged to have been stolen or received does not exceed the sum of $20, the punishment for the first offense shall not exceed imprisonment in the county jail or on the public roads a longer period than one year, and all such offenses hereafter committed in said county are hereby declared petty misdemeanors, and the recorder's court shall have original jurisdiction thereof: Provided, the right of appeal shall not be impaired."

It is manifest that the offense charged in the warrant was within the jurisdiction of the recorder's court, because the punishment was not in the penitentiary: and, while the offense of larceny is generally a felony, yet the General Assembly has made the larceny of sums not exceeding the value of $20 a petty misdemeanor for the first offense.

It is true that the warrant does not charge that this was the first offense, but that is presumed by law; for, when the state desires to punish as for second conviction, the first conviction should be charged in the warrant or bill of indictment. State v. Davidson, 124 N.C. 839, 32 S.E 957.

A similar act, relating to the recorder's court of Winston was enacted in 1907, c. 573. By that act, larceny of goods less than $10 in value was made a petty misdemeanor. The constitutionality of the act was sustained in State v. Jones, 145 N.C. 460, 59 S.E. 117; and it was held that upon appeal to the superior court from the judgment of the recorder's court an indictment by the grand jury of the superior court is dispensed with, and that the charge may be tried by the petit jury upon the warrant of the recorder.

2. It is contended that the defendant is denied his right of trial by a jury by this act. This contention has been decided adversely to the defendant in a number of cases. It is well settled by these decisions that the Legislature has the constitutional power to create recorders' courts, and to give them original jurisdiction over all criminal offenses below that of felony, and declare them to be petty misdemeanors....