State v. Presly
| Decision Date | 31 January 1875 |
| Citation | 72 N.C. 204 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. PETER PRESLY. |
The Superior Courts have concurrent jurisdiction with Justices of the Peace of the offence of entering on land after being forbidden so to enter. If complaint is not made by some person within six months from the commission of the offense, a Justice has no jurisdiction, and its cognizance is left to the Superior Court.
( State v. Briggs and Perry, 71 N. C. Rep. 522, cited and approved.)
INDICTMENT, for criminal trespass on the land of the prosecutor, and cutting trees thereon, tried at the Fall Term, 1874, of UNION Superior Court, before his Honor Buxton, J.
The Grand Jury found a true bill against the defendant at Fall Term, 1873. On the trial, Fall Term, 1871, the defendant moved to dismiss the indictment for want of jurisdiction in the Superior Court to try the same, contending that the jurisdiction was taken from the Court by the Act of 1873-'74, chap. 176, and that the offense was now only cognizable in a Justice's Court.
The Solicitor resisted the motion, and insisted that the Superior Courts had concurrent jurisdiction; that the Act of 1873-'74, by not repealing the whole of sec. 116, chap. 33 of Battle's Revisal, but only sub-division 1 of that section, leaving sub-divisions 2 and 3 undisturbed, made it necessary still, in order to give Justices of the Peace final jurisdiction, that the requisites contained in sub-divisions 2 and 3, should be complied with. It was further insisted on the part of the State, that more than six months having elapsed since the commission of the offense, if the case was dismissed, no Justice could now assume jurisdiction.
The motion to dismiss was overruled, and the defendant excepted.
On the trial the Jury returned a verdict of guilty. Judgment and appeal by defendant.
No counsel, for defendant .
Attorney General Hargrove and Josiah Collins, for the State .
The defendants were indicted at Fall Term, 1873, of the Superior Court of Union county, for entering on the lands of the prosecutor after having been forbidden to do so, and carrying away certain timber found thereon. The offence is charged to have been committed on January 1st, 1873. The trial took place at Fall Term, 1874, which began on the 5th October. The defendant moved to dismiss the bill for want of jurisdiction in the Court, contending that exclusive jurisdiction of the offence had been given to a Justice of the Peace. The Court refused the motion, and the defendant Presly was convicted and fined, and he appealed. The provision in Art. IV, of the Constitution, concerning the jurisdiction of the Superior Court and Justices of the Peace, is too familiar to require more than this general reference.
The Act of 1866, chap. 61, (Bat. Rev. chap. 32, sec. 116,) created the offence in question and declared that it should be a misdemeanor; and further declared that if any one, not being the owner or bona fide claimant of lands, should unlawfully enter thereon and carry off wood, &c., he should be deemed guilty of larceny?? This Act left the punishment discretionary with the Court, and consequently the Superior Court alone had jurisdiction to try the offence. By the Act of 1868-'69, chap. 178 (Bat. Rev. chap. 33, sec. 114, &c.,) it was enacted that Justices of the Peace should have jurisdiction to hear, try and determine, in the manner prescribed in that chapter, criminal actions for several described offences, among which, in sec. 116, are “indictable trespasses on real or personal property, when the punishment, imposed by law, does not exceed fifty dollars fine, or one month's imprisonment.” As this Act does not alter the punishment of the offence in question, but left it still discretionary, it gave no final jurisdiction. The Act of 1873-'74, chap. 176, sec. 8, ratified 10th day of February, 1874, amends chap. 61, of the Act of 1868, (Bat. Rev., chap. 32, sec. 116,) by adding thereto “the punishment of this offence, shall not exceed a fine of fifty dollars, or imprisonment for one month. Under this Act and the clause in the Constitution, above referred to, it seems clear that a Justice must have exclusive jurisdiction unless the grant of it be qualified and limited by the provisions of the Act of 1868-'69, chap. 178, by which the jurisdiction of a Justice is made contingent upon several conditions, two of which are that the complaint...
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