State v. Newell
| Citation | 90 S.E. 594,172 N.C. 933 |
| Decision Date | 22 November 1916 |
| Docket Number | 377. |
| Parties | STATE v. NEWELL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County.
Gilbert Newell was convicted, and appeals. Affirmed.
The defendant was indicted for larceny, and when the case was called for trial he applied to the court for a continuance thereof on the ground, among other things, that he had been used by the state as a witness against his codefendant Walter Bradley in the trial in the municipal court of the city of Greensboro, and also on the trial of Bradley in the superior court of Guilford county, both of which cases were for the same offense charged in the indictment here. The court overruled the motion and application for a continuance, and the defendant excepted. Thereupon the defendant pleaded former conviction and not guilty, and by consent the jury returned the following verdict:
"(1) That on the 5th day of April, 1916, the defendant, Gilbert Newell, together with Walter Bradley, was indicted in the municipal court of the city of Greensboro on a charge of stealing $587 from the North Carolina Public Service Company in the city of Greensboro, and on the said trial the said Gilbert Newell pleaded guilty to the charge, and was examined by the state as a witness in the case against the defendant Walter Bradley.
(2) That on the said trial it appeared that the said Gilbert Newell was employed by the North Carolina Public Service Company in the capacity of traffic clerk, whose duties were among other things, to receive from the conductors on the cars of the said Public Service Company the money and tickets taken in by them during the day, and that as such traffic clerk he remained on duty from 6 o'clock p. m. until 12 o'clock p. m., and until all the conductors had turned in their cash and tickets and made their report.
(3) That on the night of Saturday, April 1, 1916, in accordance with the plan formed by the said Newell and the said Bradley the said Bradley about 3 o'clock in the morning of Sunday, April 2, 1916, locked the said Newell in the safe of the said Public Service Company and took the cash on hand amounting to about $587; the said Newell remaining locked in the safe until about 7 or 8 o'clock the next morning when the safe was opened, and he was found and released, and the money was missed.
(4) That upon investigation it was found that the money had been taken by Bradley and $5 of the same was given by him to Newell, and subsequently the whole amount except about $125 was recovered. That on Sunday while Bradley was on the street wasting some of the money Newell went to his room, got one bag of the money containing $200 or more, carried it across the hall, and hid it in a bureau drawer in another room where it was found and recovered.
(5) Upon the trial in the said municipal court of the city of Greensboro, it appeared that the said Gilbert Newell was and is a child over 17 and under 18 years of age, and that this was his first offense, and thereupon the said municipal court, upon the facts above disclosed, sentenced the said Gilbert Newell to two years in the county jail of Guilford county, to be paroled in the custody of a probation officer of that court, and required him to appear before the said court with the said probation officer the first Monday in each month during that time and show his good behavior; the said action of the court being based upon chapter 222 of the Public Laws of North Carolina for the session of 1915.
(6) That the said Gilbert Newell was thereupon taken in custody by the said probation officer, and has since appeared before the said municipal court the first Monday in each month, together with the said probation officer, and proved his good behavior.
(7) That the said Walter Bradley, being over 21 years of age, was bound over by the said municipal court to appear at the succeeding term of the superior court of Guilford county, where at the May term thereof he was duly indicted and pleaded guilty to the charge of the larceny of the said money; the said Gilbert Newell being used by the state as a witness on the trial.
(8) That after the trial of Bradley, the solicitor for the state sent an indictment to the grand jury against the defendant, Gilbert Newell, charging him with the larceny of the said money amounting to $587, which indictment was returned a true bill, and thereupon the case was continued until the present term of court, when being called for trial the defendant, Gilbert Newell, entered a plea of the former conviction and not guilty, and introduced the record of his trial and conviction for the same offense in the municipal court of the city of Greensboro and the sentence imposed therein.
(9) Whereupon the solicitor for the state demurred to the said plea and evidence on the ground that the said municipal court did not have jurisdiction under the laws of the state of North Carolina to hear and determine the said case, the said court having tried and disposed of the case assuming jurisdiction under and by virtue of the jurisdiction conferred upon it in chapter 222 of the Public Laws of North Carolina for the session of 1915.
(10) If, upon the foregoing facts, the court should be of opinion that the said municipal court of the city of Greensboro, under and by virtue of chapter 222 of the Public Laws of North Carolina for the session of 1915, or by any other law of said state, had jurisdiction to hear and determine the case against the said defendant in that court, then the jury finds the defendant not guilty. If upon the other hand the court should be of opinion that the municipal court under the laws of North Carolina did not have jurisdiction to hear and determine the said case, as aforesaid, then the jury finds the defendant guilty."
Upon the special verdict returned, his honor being of opinion that the municipal court of the city of Greensboro did not have jurisdiction by virtue of chapter 222 of the Public Laws of North Carolina for the session of 1915, or by virtue of any other law, to hear and determine the case against the defendant in that court, adjudged the defendant guilty and thereupon sentenced him to the common jail of Guilford county for a period of twelve months, to be assigned to work upon the public roads of the county, to which judgment and sentence the defendant duly excepted and appealed therefrom to the Supreme Court, and assigned for error his exceptions filed to the validity of the trial as follows:
"(1) The defendant excepts to the refusal of the court to grant his motion and application for a continuance on the ground that, when case was called in the municipal court of the city of Greensboro, the defendant was used by the state as a witness against his codefendant Bradley, and likewise as a witness against him in the trial of the case...
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