State v. Jernigan, 577
| Decision Date | 29 November 1961 |
| Docket Number | No. 577,577 |
| Citation | 255 N.C. 732,122 S.E.2d 711 |
| Parties | STATE, v. Glenn JERNIGAN. |
| Court | North Carolina Supreme Court |
T. W. Bruton, Atty, Gen., and H. Horton Rountree, Asst. Atty. Gen., for the State.
Lawrence Egerton, Jr., Greensboro, for defendant, appellant.
Defendant on 18 March 1960 was brought before the municipal-county court, criminal division, of Guilford County, for trial on a warrant charging him on 12 February 1960 at and in Guilford County, near the South Drive-In Theatre in Greensboro, with having committed the abominable and detestable crime against nature with a woman, specified by name in the warrant, in violation of G.S. § 14-177. The record proper in that court signed by Z. H. Howerton, Jr., the presiding judge, shows the following occurred: 'The defendant entered a plea of Probable Cause Hearing to the above offense, and, upon hearing the evidence, the court rendered a verdict of Guilty (Assault on Female).' Whereupon, the judge imposed a sentence of two years imprisonment, and suspended the imprisonment for five years upon certain specified conditions, one of which was that 'defendant shall not communicate with the prosecuting witness by telephone or mail, or by any other means, and shall not molest the prosecuting witness in any way.'
On 20 January 1961 the court issued a capias to bring the defendant before it for determination of whether he had willfully violated the condition of the suspended sentence above set forth. Upon such hearing the court found as a fact that he had, and activated the sentence of imprisonment. Defendant appealed to the superior court.
Judge Gambill heard de novo the question whether defendant had willfully violated the condition of the suspended sentence above set forth, made detailed findings of fact, found that he had, and activated the sentence of imprisonment. Whereupon, defendant appealed to the Supreme Court.
Defendant in his brief makes the following contentions: He was brought before the municipal-county court, criminal division, of Guilford County, charged in a warrant with having committed the crime against nature, a violation of G.S. § 14-177, a felony. He entered a plea of probable cause hearing to the offense charged, and when he did, the court should have bound him over to the superior court of Guilford County for trial on that offense. But instead of doing this, the court heard evidence, 'rendered a verdict of guilty' of an assault on a female, which it had no jurisdiction to do because he was charged with no such offense. That such action by the court was void for lack of jurisdiction, and as the court had no jurisdiction 'to render a verdict' that he was guilty of assault on a female and to sentence him for such an offense, the superior court, whose jurisdiction was derivative on his appeal, had no jurisdiction. He contends the case should be remanded to the municipal-county court.
The municipal-county court, criminal division, of Guilford County, is a court of limited jurisdiction, and has no final jurisdiction over felonies committed within its territorial jurisdiction. 1955 Session Laws, Chapter 971, Section 3(a), (b)(1). Section 3(b), (3), of this statute gives this court authority to hear and bind over to the superior court persons charged with having committed a felony within its territorial limits upon a finding by it of probable cause of guilt. Section 4, Rule 15, of the above statute, provides: 'In all cases heard by the judges of the court as committing magistrates in any case where the court does not have final jurisdiction, and in which proable cause of guilt is found,' the defendant shall be bound over to the next succeeding criminal term of the superior court of Guilford County, Greensbor Division.
The crime against nature in this jurisdiction is a felony. G.S. § 14-177.
The superior court is a court of general, state-wide jurisdiction, and has final jurisdiction of all felonies committed within the territorial limits of the State. G.S. § 7-63.
A valid warrant or indictment is an essential of jurisdiction. State v. Thornton, 251 N.C. 658, 111 S.E.2d 901; State v. Wallace, 251 N.C. 378, 111 S.E.2d 714; State v. Nugent (Strickland), 243 N.C. 100, 89 S.E.2d 781; State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Beasley, 208 N.C. 318, 180 S.E. 598.
The warrant here specifies in detail the facts of the crime charged, which is sodomy. 81 C.J.S. Sodomy § 1(2). The warrant here does not aver that the woman therein named was unwilling, or that compulsion or force was used, or that an assault was committed upon her.
An assault upon a woman is not a less degree of the crime of sodomy charged in the warrant here. See G.S. § 15-170; State v. Savage, 161 N.C. 245, 76 S.E. 238.
The municipal-county court 'rendered a verdict' the defendant is guilty of an assault upon a female, and imposed sentence upon him without a warrant, or a waiver thereof, and without a plea by defendant to such an offense, or the intervention of a jury. Speaking directly to such a point, this Court said in State v. Alston, 236 N.C. 299, 72 S.E.2d 686:
'An appeal will be taken as an exception to the judgment and raises the question as to whether error in law appears upon the face of the record.' State v. Corl, 250 N.C. 252, 108 S.E.2d 608, 612.
It appears here upon the face of the record proper that the municipalcounty court had no jurisdiction 'to render a verdict' the defendant is guilty of an assault on a woman, to impose a sentence of imprisonment upon him suspended on certain conditions, and to activate the sentence of imprisonment upon a finding that he had...
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Perkins v. State of North Carolina
...8 State v. Walston, 259 N.C. 385, 130 S. E.2d 636 (1963); State v. King, 256 N. C. 236, 123 S.E.2d 486 (1962); State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711 (1961); State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961); State v. Ownbey, 247 N.C. 271, 100 S.E.2d 505 (1957); State v. Peg......
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