State v. Taylor

• Decision Date: 21 April 1896
• Citation: 24 S.E. 526,118 N.C. 1262
• Parties: STATE v. TAYLOR.
• Court: North Carolina Supreme Court

24 S.E. 526

118 N.C. 1262

STATE v. TAYLOR.

Supreme Court of North Carolina

April 21, 1896

Appeal of STEPP.

Appeal from superior court, Henderson county; Coble, Judge.

Prosecution on complaint of J. H. Stepp, against J. A. Taylor. From a judgment denying his motion to remand the case to the justice court for an amendment of the warrant and retrial, the prosecutor appeals. Affirmed.

A warrant was issued, upon the complaint of J. H. Stepp charging that the defendant "did unlawfully maliciously, willfully, commit damage, injury, and spoil upon one fence, the property of J. H. Stepp, in violation of section 1081 of the Code," etc., "by pulling down the same," etc. Upon the trial before the justice of the peace the prosecutor moved to amend the warrant so as to charge that the defendant "did unlawfully and willfully pull down the fence surrounding a cultivated field, the property and in possession of J. H. Stepp. Code, § 1062." And the motion was denied by the justice upon the ground that he had no power to make the amendment; and the prosecutor appealed to the superior court. It was also adjudged by the justice of the peace that the prosecution was frivolous, and that prosecutor pay the costs. Upon the hearing in the superior court the prosecutor moved to demand the case to the justice of the peace to the end that the warrant might be amended, and the case tried. The motion was denied, and the prosecutor appealed to the supreme court.

The findings of the superior court on matters of costs, on appeal by a prosecutor from a judgment of a justice charging him with costs, are conclusive.

The Attorney General, for appellant.

Ewart & Toms, for appellee.

FURCHES J.

The appeal is without merit, and cannot be sustained. If the justice of the peace had authority to amend the warrant under section 908 of the Code, he did not do it. And we know of no power we have, or the superior court had, to compel him to exercise a discretionary power. But this being a proposition or motion to strike out the offense charged in the warrant, and to insert another offense, it seems that such amendment was not authorized. State v. Vaughan, 91 N.C. 535; State v. Crook, Id. 536. But the prosecutor had no right to appeal, except, it may be, as to costs. State v. Powell, 86 N.C. 640. And while the superior court may review the findings of fact and judgments of justices of the peace on matters of cost, in cases like this,...