Appeal
from Superior Court, New Hanover County; Cranmer, Judge.
Le Roy
Goff and T. E. Goff, Jr., who had been convicted in the
recorder's court on a warrant charging an assault and had
appealed to the superior court, were convicted in the latter
on an indictment of willfully beating and assaulting another
and inflicting serious injury, and they appeal.
Remanded
to the superior court to be tried de novo on the warrant
issued in the recorder's court.
"This
is a criminal action charging that the defendants, Le Roy
Goff, T. E. Goff, Jr., and Mrs. T. E. Goff, Sr., did
unlawfully and wilfully beat and assault Mrs. T. E. Goff
Jr., and inflict upon the said Mrs. T. E. Goff, Jr., serious
injury, by reason of severe and painful abrasions and
contusions on the arms, legs and body as per bill of
indictment set out in the record, returned as a true bill, at
the July Term, 1933, of the Superior Court of New Hanover
County.
"The
following is a true copy of the warrant which the defendants
were tried on and convicted in the Recorder's Court
'Nos. 961 and 962--State v. Tom Goff, Le Roy Goff. The
Recorder's Court of New Hanover County. On this 25th day
of June, 1933, before W. T. Hansley, Deputy Clerk
Recorder's Court of New Hanover County, personally
appeared Mrs. T. E. Goff, Jr., and made oath in due form that
on the 24th day of June, 1933, and in the County of New
Hanover, Tom Goff, and Le Roy Goff, did unlawfully and
wilfully assault her by beating her with his hands and did
kick her, she a female and he a male over 18 years of age
against the form of the statute in such cases made and
provided, and against the peace and dignity of the State.
Mrs. T. E. Goff, Jr., Affiant. Sworn to and subscribed before
me, this the 25th day of June, 1933. W. T. Hansley, Deputy
Clerk Recorder's Court, New Hanover County."'
A
warrant for the arrest of Tom Goff and Le Roy Goff was duly
issued and the case set for 10 a. m. June 26, 1933, before
the recorder's court of New Hanover county, N. C.
"Continued
6-27-33; Bond $200.00, T. E. Goff, Sr., Surety. Judgment open
6-30-33--7-7-33, Guilty fined $25.00 and costs. Judgment
suspended during twelve months good behavior and on payment
of costs.
"On
July 7, 1933, Notice of appeal to the Superior Court was
given and bond fixed and given in sum of $100.00, with T. E.
Goff, Sr., as Surety.
"Appeal
withdrawn in open Court 7-14-33; Costs $8.05 paid, on August
4th, 1933, as to Le Roy Goff and costs, as to Tom Goff has
not yet been paid.
"At
the July Term, Superior Court, 1933, beginning July 24, 1933,
the Grand Jury returned the following bill of indictment:
'State of North Carolina, New Hanover County--Superior
Court, July Term, 1933. The jurors for the State upon their
oath, present, That Tom Goff, Le Roy Goff and Mrs. T. E.
Goff, Sr., late of the County of New Hanover, on the 24th day
of June, 1933, with force and arms, at and in the County
aforesaid, did unlawfully and wilfully beat and assault Mrs.
T. E. Goff, Jr. and inflict upon the said Mrs. T. E. Goff,
Jr., serious injury by reason of severe and painful abrasions
and contusions upon the arms, legs and body of Mrs. T. E.
Goff, Jr., caused by kicks and other blows struck by the said
defendants, Tom Goff, Le Roy Goff and Mrs. T. E. Goff, Sr.,
against the form of the statute in such case made and
provided, and against the peace and dignity of the State.
Kellum, Solicitor.'
"At
the September Term, 1933, the defendants were tried in the
Superior Court upon the above bill of indictment, before His
Honor, E. H. Cranmer, Judge, and a jury. The defendants
stated to the Court that they had been formerly tried and
convicted of assault and battery upon the said Mrs. T. E.
Goff, Jr., upon this case being called for trial; that upon
judgment being pronounced in said Recorder's Court on
July 7, 1933, the defendants, Tom Goff and Le Roy Goff,
appealed to the Superior Court of New Hanover County,
immediately executed and delivered their appearance bond to
said Superior Court beginning July 24, 1933. This appeal was
docketed in the Superior Court of said County on July 8,
1933. While said appeal was pending in the Superior Court of
said County on July 14, 1933, said defendants appeared in the
Recorder's Court and stated that they desired to withdraw
the appeal they had taken on July 7, 1933, to the Superior
Court, at which time the Recorder directed the entry to be
made: 'Appeal withdrawn in open Court.' Le Roy Goff
paid the costs of $8.05 on August 4, 1933. Tom Goff had not
paid any part of the costs. It further appearing to the Court
that at the Superior Court beginning and held in and for said
County on July 24, 1933, the bill of indictment above set out
was duly returned by the grand jury, and on July 27, 1933, a
capias issued out of said Court for said defendants and on
July 31, 1933, said defendants were arrested and executed an
appearance bond returnable to the September Term of said
Superior Court beginning September 11, 1933.
"The
Court held, on the admission of the defendants and the record
as herein set out, that the State should proceed with the
trial of said case, at which time Le Roy Goff said he desired
to recover the $8.05 he had paid to the Recorder's Court.
The defendants each plead former conviction, and in Superior
Court were without counsel. Upon the record, the plea was
overruled, the bill charging serious injury, which was not in
the charge in Recorder's Court. Each defendant excepted.
The trial then proceeded, resulting in a verdict as charged
in the bill of indictment, upon which the Court entered
judgment:
"'That
judgment be suspended as to the defendants, Mrs. T. E.
Goff, Sr., upon payment of one-third of the costs. The
defendants, Le Roy Goff and T. E. Goff, Jr., were each
sentenced to 18 months in jail, to be assigned to work on
the State Highway, as per Judgment of the Court as shown in
the Record.' After the verdict and judgment, the
defendants, Le Roy Goff and T. E. Goff, Jr., gave notice of
appeal in open Court to the Supreme Court."
The
appealing defendants made several exceptions and assignments
of error and appealed to the Supreme Court. The material ones
will be considered in the opinion.
Nathan
Cole and W. F. Jones, both of Wilmington, for appellants.
Dennis
G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty.
Gen., for the State.
CLARKSON
Justice.
The
record discloses that the case on appeal was settled by the
court below upon disagreement of counsel. Numerous opinions
of this court are to the effect that the record to this court
imports verity, and we are bound by it.
The
first exception and assignment of error made by appellants is
as follows: "His Honor was in error in not sustaining
the plea of former conviction of defendants and ordering them
discharged." We see no error in the court below in not
sustaining the plea of former conviction.
In the
record is the following: "Judgment being pronounced in
said Recorder's Court on July 7, 1933, the defendants,
Tom Goff and Le Roy Goff, appealed to the Superior Court of
New Hanover County, immediately executed and delivered their
appearance bond to said Superior Court beginning July 24th,
1933. This appeal was docketed in the Superior Court of said
County on July 8, 1933. While said appeal was pending in the
Superior Court of said County on July 14, 1933, said
defendants appeared in the Recorder's Court and stated
that they desired to withdraw the appeal they had taken on
July 7, 1933, to the Superior Court, at which time the
Recorder
directed the entry to be made: 'Appeal withdrawn in open
Court.' Le Roy Goff paid the costs of $8.05 on August 4,
1933. Tom Goff had not paid any part of the costs."
Under
the above facts appearing in the record, the defendants
appellants could not withdraw their appeal. The presumption
from the record is that the recorder sent all the necessary
papers to the superior court, where they were duly docketed.
An appearance bond for appellants was duly given.
C. S. §
4647, is as follows: "The accused may appeal from the
sentence of the justice to the superior court of the county.
On such appeal being prayed, the justice shall recognize both
the prosecutor and the accused, and all the material
witnesses, to appear at the next term of the court, in such
sums as he shall think proper; and he may require the accused
to give sureties for his appearance as aforesaid. In all
cases of appeal, the trial shall be anew, without prejudice
from the former proceedings." C. S. § 4648, et seq.
In
Sneeden v. Darby, 173 N.C. 274, 275, 91 S.E. 956,
957, speaking to the subject: "The act establishing the
recorder's court in Wilmington (chapter 398, Public Laws
1909, as amended by chapter 217, Public Local Laws 1911)
provides that 'any person desiring to appeal to the
superior court, in a criminal or civil case, from a judgment
of the recorder's court, shall be allowed to do so in the
same manner as is now provided for appeals from the courts of
justices of the peace,' and section 608 of the Revisal
requires an appeal from a justice to the superior court to be
docketed 'at the ensuing term of said court."'
35 C.J
part section 481(b), p. 786, is as follows: "When the
jurisdiction of the appellate court has attached on appeal
from a justice's court the powers of the justice are in
general at an end, or suspended during the pendency of the
appeal, except in so far as may be necessary to transmit the
record to the appellate court. After the appeal is perfected,
the justice has no power to vacate." Marshall v.
Lester, 6 N. C. 227; Sturgill v. Thompson, 44
N.C. 392; Forbes v. McGuire, 116 N.C. 449, 21 S.E.
178; Carolina Bagging Co. v. R. R....
