State v. Williford

• Decision Date: 31 October 1884
• Citation: 91 N.C. 529
• Court: North Carolina Supreme Court
• Parties: STATE v. ALFRED WILLIFORD and others.

91 N.C. 529

STATE

v.ALFRED WILLIFORD and others.

Supreme Court of North Carolina.

October Term, 1884.

INDICTMENT for forcible trespass tried at Spring Term, 1884, of HERTFORD Superior Court, before Gudger, J.

Verdict of guilty, judgment, appeal by the defendants.

Attorney General, for the State .

No counsel for defendants.

ASHE, J.

The first point presented by the record was whether a plea in abatement to the jurisdiction of the court would lie.

The facts were these: The alleged forcible trespass was committed on the 25th of August, 1883, upon the house and premises of one Holloman; that soon thereafter and before the fall term, 1883, of Hertford superior court, a warrant was issued against these defendants and one Lassiter by a magistrate of Hertford county, and on the hearing before said magistrate these defendants, (Lassiter not having been arrested,) were bound over to appear at February term, 1884, of the inferior court of Hertford county, to answer the charge of forcible trespass; that at fall term, 1883, of the superior court for said county, this indictment was found and writs of capias were issued, upon which in March, 1884, and later, these defendants were arrested and gave bond for their appearance at spring term, 1884, of the superior court; that the defendants appeared at the February term, 1884, of the inferior court of said county, when an indictment for the same offence was found by the grand jury of that court against the defendants, and the case was continued to August term, 1884, of said court, and the defendants entered into a recognizance to appear at said August term.

The defendants pleaded in abatement that the inferior court had jurisdiction of the case, but His Honor overruled the plea, and the defendants excepted.

The plea in abatement was properly overruled. The superior and inferior courts had concurrent jurisdiction of the offence of which the defendants were charged. THE CODE, § 1241, and the act of 1879, ch. 302. And when two or more courts have equal or concurrent jurisdiction of a case, that court possesses the case in which jurisdiction first attaches. Childs v. Martin, 69 N. C., 126; State v. Tisdale, 2 Dev. & Bat., 159; State v. Casey, Busb., 209; Haywood v. Haywood, 79 N. C., 42; Merrill v. Lake, 10 Ohio, 373; State v. Yarborough, 1 Hawks, 78.

Here, the offence was committed in August, 1883, and at fall term, 1883, of the superior court the bill of indictment upon which the defendants were tried and convicted was found.

The superior court thereby took jurisdiction of the case. No bill of indictment was found in the inferior court until its February term, 1884, after the superior court had taken possession of the case. The inferior court could not be said to have taken jurisdiction from the fact that the warrant issued in August, 1883, was returnable, and the defendants recognised to appear at the February term of said court; for the return of a warrant to a court does not necessarily give jurisdiction to such court, for the court may still fail to take cognizance of the case by proceeding with the prosecution. It was the duty of the magistrate under the act of 1879, to bind the defendants to the superior court, that being the first court after the arrest. But although the magistrate failed in his duty in this respect, the superior court having taken jurisdiction of the case, its jurisdiction could not be...