State v. Weddington
| Decision Date | 29 April 1889 |
| Citation | 9 S.E. 577,103 N.C. 364 |
| Parties | STATE v. WEDDINGTON. |
| Court | North Carolina Supreme Court |
The indictment having charged killing with a piece of plank testimony of a witness that he saw deceased in the afternoon before the night of the killing wearing a brown wool hat, and that on the morning after the killing he found on a stick picked up where the killing occurred, and shown by other evidence to have been used in giving the fatal wound, several strands, like a fine brown wool, caught in splinters of the wood, was properly admitted.
Jones & Tillett, for appellant.
The Attorney General, for the State.
This was an indictment for murder, found in the superior court of Union county, and moved to the criminal court of Mecklenburg county, where it was tried before MEARES, Judge, at December term, 1888. The defendant was found guilty of murder, and judgment was entered accordingly.
Adopting the order in which the exceptions were discussed by counsel we will consider, first, whether the criminal court of Mecklenburg county had jurisdiction. If that court had no right to try the prisoner, it would be useless to extend our investigation further than is necessary to reach that conclusion. The prisoner was indicted with two other defendants, who were found guilty as accessories, and have been sent to the state-prison. The following is a copy of the motion, and the material portions of the order of removal made in the superior court of Union county, as appears from the record: It is admitted that a duly-certified copy of the record of the case was forwarded by the clerk of the superior court of Union county to the solicitor of said criminal court, who handed it to the clerk of the superior court of Mecklenburg county. The clerk of the latter county entered the case on the docket of the superior court of Mecklenburg, and annexed to the said copy of the record a certificate that it had been transmitted to him from the clerk of the superior court of Union county, and transmitted it to the criminal court. The case was thereupon docketed in said criminal court, and, after one continuance, tried there.
The motion in arrest of judgment, for want of jurisdiction in said criminal court, is upon the ground that the act creating the court (chapter 63, Laws 1885) does not confer upon it jurisdiction of any criminal offense committed outside of Mecklenburg county even after removal, or, if the said act gives the right to try cases on removal from other counties at all, the jurisdiction of the criminal court does not attach till after the cases are certified to the superior court of Mecklenburg county, docketed there, and a new transcript of the record sent thence to said criminal court. The argument in support of the motion in arrest of judgment is predicated upon the idea that the power of the criminal court to try must depend upon the construction given to sections 4, 21, and 24 of the act establishing the court. We think that the court below properly refused the motion in arrest of judgment. The right of the general assembly to establish criminal courts is derived from sections 2, 30, art. 4, of the constitution. There can be no doubt that, in the exercise of the power given in these sections, the general assembly has created a criminal court, with general jurisdiction of all criminal offenses that were cognizable before the passage of that act in the superior court of Mecklenburg county, and that the latter court no longer has such general jurisdiction of criminal offenses. Code, § 196 , provides that, "in all civil and criminal actions in the superior and criminal courts, in which it shall be suggested on oath or by affirmation on behalf of the state or the traverser of a bill of indictment, *** the judge shall be authorized to order a copy of the record of said action to be removed to some adjacent county for trial," etc. A subsequent section (198) provides that, "when a cause shall be directed to be removed, the clerk shall transmit to the court to which the same is removed a transcript of the record of the case," etc. These sections empower the judges of superior and criminal courts to order the record to be sent to some adjacent county, not to any specified court; but the clear implication is that it must be sent to the court having general jurisdiction of criminal offenses in such adjacent county, and direct the clerk of the court in which the order of removal is made to transmit a transcript of the record to the clerk of the court to which, by the order, it is to be removed. There being nothing in the act of establishing the criminal court, that is, in our opinion, repugnant to the sections of the Code referred to, we hold that it had jurisdiction of this case. It is admitted, as it also appears from the record, that the transcript was certified in proper form by the clerk of the superior court of Union county, and was ultimately delivered to the clerk of the court that tried the prisoner. If duly certified, it was not material through how many or whose hands it passed in transitu. The criminal court had proper evidence that it was a record, and in that record was an order that could be interpreted and treated only as an order of removal to it for trial. The attached certificate of the clerk of the superior court of Mecklenburg county did not impart or destroy the character of the paper as a record. The order of removal to the criminal court of Mecklenburg gave to that court the right to try, so soon as the record containing that order should reach its clerk duly authenticated, and so much of said order as required the case to be docketed in the superior court of Mecklenburg must be treated as surplusage. The fact that it was so docketed did not affect its authenticity as a record. No such addition to the order, already sufficient, could affect the power of the criminal court to try.
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