State v. McHone

• Decision Date: 14 December 1955
• Docket Number: No. 654,654
• Citation: 243 N.C. 231,90 S.E.2d 536
• Court: North Carolina Supreme Court
• Parties: STATE, v. Foy McHONE.

Page 536

90 S.E.2d 536

243 N.C. 231

STATE, v. Foy McHONE.

No. 654

Supreme Court of North Carolina.

Dec. 14, 1955

Frank Freeman, Dobson, J. N. Freeman, Mount Airy, for defendant-appellant.

Atty. Gen. Wm. Rodman, Jr., Asst. Atty. Gen. Claude L. Love, for the State.

WINBORNE, Justice.

In connection with appellant's assignment of error based upon exception to denial of his plea in abatement, it is appropriate to review pertinent prescribed procedure.

I. In the orderly course of such procedure a justice of the peace is named among those who are given power to issue process for the apprehension of persons charged with any criminal offense. G.S. § 15-18.

And it is provided by statute that 'Whenever complaint is made to any such magistrate that a criminal offense has been committed within this State, * * * it shall be the duty of such magistrate to examine on oath the complainant and any witnesses who may be produced by him.' G.S. § 15-19.

The statute also provides that 'if it shall appear from such examination that any criminal offense has been committed, the magistrate shall issue a proper warrant under his hand * * * reciting the accusation, and commanding the officer to whom it is directed forthwith to take the person accused of having committed the offense, and bring him before a magistrate, to be dealt with according to law. The justice of the peace shall direct his warrant to the sheriff or other lawful officer in his county.' G.S. § 15-20.

It is further provided by statute, G.S. § 15-24, as rewritten by 1953 Session Laws of North Carolina, Chapter 141, Sec. 1, that 'persons arrested under any warrant issued for any offense where no provision is otherwise made, shall be brought before the magistrate who issued the warrant; or, if he be absent or from any cause unable to try the case, before the nearest magistrate in the same county, provided, however, that a magistrate may make such warrant returnable before any other magistrate or any court inferior to the superior court having jurisdiction within the same county, and the warrant by virtue of which the arrest shall have been made with a proper return endorsed thereon and signed by the officer or person making the arrest shall be delivered to such magistrate or to the court within the same county as may be directed in the warrant.'

Testing the procedure followed in the present case by the prescribed procedure as outlined above, it is seen that though the justice of the peace who took the oath of the complainant and who issued the warrant charging the offense described in the affidavit, was an officer of the police force of Mt. Airy, there is nothing in the record to show that he did anything in respect to the issuance of the warrant here in question in any other capacity than as a justice of the peace. Indeed, it does not appear that he acted in the capacity of police officer.

Therefore, this is substantially the question presented by defendant under his assignment of error based on exception to denial of his plea in abatement: In this State, may a justice of the peace, who is also an officer on the police force of a town, lawfully as justice of the peace, take the oath of another police officer to an affidavit on which a criminal warrant is to be issued, and then as a justice of the peace lawfully issue a warrant thereon, addressed to the chief of police or any other lawful officer of the town or county, returnable for trial before the judge of the recorder's court of the town, who tries the case? The answer is 'Yes'.

The Constitution of North Carolina, Sec. 7, Article XIV, forbidding double office holding expressly provides that nothing therein contained 'shall extend to officers of the militia, notaries public, justices of the peace, commissioners of public charities, or commissioners for special purposes.'

And this Court in the case of State ex rel. Barnhill v. Thompson, 1898, 122 N.C. 493, 29 S.E. 720, 721, pertinently stated: 'At common law there was no limit to the right of a citizen to hold several offices, except incompatability of the duties of the several offices, and much learning was invoked in England and in this country on the question of incompatability. We are relieved, however, from much labor on that subject by our constitution, [article XIV, § 7].' Then after quoting the language of this section of the Constitution, the Court concluded by saying: 'This provision is plain, and leaves no room for construction whenever the...