State v. Oates

• Decision Date: 28 February 1883
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN OATES and another.

88 N.C. 668

STATE

v.JOHN OATES and another.

Supreme Court of North Carolina.

February Term, 1883.

MOTION to dismiss the proceeding for want of jurisdiction, heard at January Special Term, 1882, of SAMPSON Superior Court, before McKoy, J.

The defendant, Oates, was arrested in February, 1881, by virtue of a peace warrant issued by a justice of the peace, and upon an investigation of the matters charged therein, he was required to enter into a recognizance in the sum of three hundred dollars, with condition to keep the peace for six months towards all the citizens of the state, and especially towards William E. Stevens, the complainant, which recognizance was entered into with James H. Pugh, the other defendant, as surety.

On the 7th of November, 1881, a notice in the nature of a scire facias was issued by said justice to the sheriff,--reciting the warrant, the order thereon, the recognizance, and the fact that on April 9th, and while the recognizance was in force, the defendant, Oates, had been convicted before one Hubbard, a justice of the peace, of an assault and battery upon one Washington Stevens,--commanding him to make known to the said Oates and Pugh, that they personally appear before him at his office in Clinton, on the 17th of November, 1881, then and there to show cause why the recognizance should not be declared to be forfeited.

The defendants failed to appear as required, and thereupon the recognizance was adjudged by the justice to be forfeited, and that it be prosecuted according to law. From this judgment the defendant appealed to the superior court. His Honor affirmed the ruling of the justice, and the defendants appealed to this court, assigning as grounds therefor that the justice had no jurisdiction of the action, because the bond was for a sum above two hundred dollars.

Attorney-General and E. T. Boykin, for the State .

No counsel for defendants.

ASHE, J.

The defendants' appeal seems to be founded upon the idea that this was a civil action, and the jurisdiction of the justice was restricted by the constitution to two hundred dollars. That is so, if it is a civil action. The constitution gives to justices of the peace, under such regulations as the general assembly shall prescribe, jurisdiction of civil actions founded on contract, wherein the sum demanded shall not exceed two hundred dollars. Art. IV, § 27. But this is not a civil action. It is an action prosecuted by the state, at the instance of an individual, to prevent an apprehended crime against his person or property (Bat. Rev., ch. 17, § 5, sub.-sec. 2), and this provision of the Code has had a construction given it by this court in the case of State v. Locust, 63 N. C., 574, where it was held that a proceeding upon a peace warrant was a criminal action.

Actions by the Code are divided to two kinds--civil and criminal. A criminal action is, 1. An action prosecuted by the state, as a party, against a person charged with a public offence for the punishment thereof; and 2. An action prosecuted by ...