State v. King

• Decision Date: 14 October 1942
• Docket Number: 75.
• Citation: 22 S.E.2d 241,222 N.C. 137
• Parties: STATE v. KING.
• Court: North Carolina Supreme Court

22 S.E.2d 241

222 N.C. 137

STATE v. KING.

No. 75.

Supreme Court of North Carolina

October 14, 1942

Criminal prosecution upon a warrant issued out of the police court of the city of Asheville, charging defendant with commission of offenses of unlawful possession, and transportation of intoxicating liquor.

The record proper as set out in the transcript on this appeal contains: (1) Warrant issued out of the police court of the city of Asheville on 27 January, 1942, for the arrest of defendant upon charges of unlawful possession of intoxicating liquor for purpose of sale, and of carrying, transporting and delivering intoxicating liquor in violation of law, which warrant is numbered 3989, and is designated "Warrant and summons U. P. W. K. L. S. C. T. D." (2) Judgment entitled "State of North Carolina, County of Buncombe in the municipal court", and signed "Sam M. Cathey Judge municipal court", dated 11 February, 1942, which reads in pertinent part that defendant "is to be committed to the common jail of Buncombe County, North Carolina, for a period of twelve (12) months to be assigned to work under the direction and supervision of the State Highway Commission. This sentence is to be suspended for a period of two years upon the following expressed conditions": among others, "(1) That the defendant is not to drive any motor vehicle of any kind in Buncombe County during the life of this judgment". (3) A written statement (patently a return to notice of appeal) under the caption of "State v. Herschel King, No. 3989--City of Asheville in the police court", dated 17 May, 1942, and signed by "R. F. Messer, Clerk of the police court", which reads: "Upon hearing the evidence in the above entitled case the defendant is adjudged guilty and sentenced to a term of 12 months under the supervision of the SH&PWC on a charge of UPW&KLS, and CTD, said sentence to be suspended for a period of two years upon condition that set forth in the within enclosed judgment, the court finding as a fact after hearing evidence of J. M. Coffey the condition number 1 of said judgment having been violated on May 14th, 1942, evidence of the defendant operating a motor vehicle in the city of Asheville, said sentence ordered into effect. Plaintiffs attorney at that time giving notice of appeal to the May, 1942, term of the Superior Court upon the finding of the facts of violation of the judgment in the police court. Said appeal being granted by the police court. Appeal to the Superior Court of Buncombe County. Bond fixed at $1250.00." (4) Bond of defendant in the sum of $1,250 for his appearance at May Term, 1942, of Superior Court of Buncombe County, "to answer the charges preferred against him for appealed 12 months and to receive what shall by the court be then and there enjoined upon him ***". (5) Judgment entered at May Criminal Term, 1942, of Buncombe County "upon appeal by the defendant from a judgment of Sam M. Cathey, judge of the police court of the city of Asheville", in which after finding as facts (a) that defendant was convicted in said police court on 11 February 1942, on the charge of unlawfully possessing and transporting liquor, and, upon such conviction, was sentenced to a term of twelve months to be assigned to work upon the public highways under the direction and supervision of the State Highway and Public Works Commission, and that said sentence was suspended for a period of two years upon the condition, among others "that defendant is not to drive any motor vehicle in the county of Buncombe during the life of this judgment"; (b) that from this judgment defendant did not appeal; and (c) that on 17 May, 1942, defendant was before judge of the police court on the charge that he had violated the above quoted condition upon which judgment of 11 February, 1942, was suspended, at which time and place Sam M. Cathey, judge of the police court of the city of Asheville, finding that the terms of said judgment had been violated, entered judgment putting the suspended sentence into effect, it appears that the court after hearing testimony, also finds "as a fact that the defendant drove an automobile on Patton Avenue in the city of Asheville on the 14th day of May, 1942, in violation of the terms and conditions upon which the judgment of the police court of the city of Asheville, dated 11 February, 1942, was suspended". It further appears in said judgment that "upon the foregoing findings of fact" the court adjudged that the defendant had so violated one of the express conditions upon which judgment of imprisonment against defendant was so suspended, and thereupon the court further adjudged that the judgment of the judge of the police court of the city of Asheville, dated 17 May, 1942, putting into effect the previous sentence of imprisonment against defendant "be, and the same is hereby in all respects affirmed, and it is ordered and adjudged that execution and commitment be issued, and that the defendant be committed and serve said sentence".

Defendant appeals therefrom to the Supreme Court and assigns error.

Harry McMullan, Atty. Gen., and G. B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

Sam J. Pegram and J. W. Haynes, both of Asheville, for defendant appellant.

WINBORNE Justice.

The only exception, assigned by defendant for error on this appeal is to the "findings of fact and judgment of the Superior Court". The exception is not tenable.

"Appeals in criminal cases are controlled by the statutes on the subject." State v. Rooks, 207 N.C. 275, 176 S.E. 752.

While the statutes, under which the police court of the city of Asheville was created and now exists, with jurisdiction over criminal offenses therein defined, provide that "any person convicted in said court shall have the right of appeal to the superior court, and upon such appeal the trial in the superior court shall be de novo", no provision is made for appeal in a case, such as this in hand, where the police court of the city of Asheville, upon finding that a condition upon which prison sentence imposed on defendant was suspended has been violated by the defendant, orders execution of the sentence. Private Laws 1905, Chapter 35, as amended...