Town of Richlands v. Koonce

• Decision Date: 17 March 1891
• Citation: 12 S.E. 1032,108 N.C. 752
• Parties: TOWN OF RICHLANDS v. KOONCE.
• Court: North Carolina Supreme Court

12 S.E. 1032

108 N.C. 752

TOWN OF RICHLANDS v. KOONCE.

Supreme Court of North Carolina

March 17, 1891

Appeal from superior court, Onslow county; ARMFIELD, Judge.

The defendant was charged criminally before the mayor of the town of Richlands, in the county of Onslow, with the violation of an ordinance of that town, and convicted.He appealed to the superior court.In that court, upon motion of the solicitor for the state, the state warrant was allowed to be amended "the appeal was withdrawn," and, "by agreement,"the case was remanded to the mayor for trial.Afterwards, upon application of defendant, the mayor transferred the case to a justice of the peace, to be tried before him.The defendant demanded a jury trial, which was had.There was a verdict of guilty, and thereupon the defendant moved in arrest of judgment.The motion was overruled, and judgment was given against the defendant, and he appealed to the superior court.In that court the solicitor "insisted that the defendant, by asking at spring term, 1890, that the case be remanded, to be settled by the lower court, and by order of the court to that effect had lost his right to a further appeal."The defendant thereupon said that "he only asked to be heard in this [the superior] court on his motion in arrest of judgment."The court refused to hear that motion, and granted the motion of the solicitor to "amend the warrant so as to recite the town ordinance on which it is based, and otherwise conform it to the facts found on the trial."The defendant objected, and excepted.It seems the amendments were made, but they do not appear in the transcript of the record.The court overruled the motion in arrest of judgment, gave judgment against the defendant, and he appealed to this court.

On appeal to the superior court from a conviction before a justice of the peace, the court can allow an amendment of the warrant.

S. W Isler, for appellant.

The Attorney General, for appellee.

MERRIMON C.J., (after stating the facts as above.)

The proceedings and conduct of this case have been irregular and confused.The superior court should have tried the defendant upon the first appeal from the judgment of the mayor, but he cannot complain that this was not done.The offense charged is but a petty misdemeanor, and the appeal was "withdrawn," it seems, at his instance, and "by agreement,"the case was remanded to the mayor to be disposed of by him.Afterwards the defendant had the case transferred to a justice of the peace, and he was tried before that magistrate.It must be taken that he consented to such course of procedure, and he is concluded by it, subject to his right of appeal to the superior court.The appeal by the defendant from the judgment of the justice of the peace took the case into the superior court, not to be heard there simply as to...