Hendersonville v. . McMinn

Ashe, J. The process under which the defendant was arrested is so defective in form and substance as not to warrant *534 tbe judgment pronounced upon him in the court below. It should have set out the'ordinance, but instead of doing so it charges the defendant with the violation of one of the ordinances of the town of Hendersonville — prohibiting the sale of intoxicating liquors, implying that there was more than one ordinance of the town on that subject. Which did he violate ? If it was intended to be a criminal prosecution, the warrant is the indictment; and every indictment must state the facts and circumstances constituting the offence with such certainty, that the defendant may be enabled to determine the species of the offence with which he is charged, in order that he may know how to prepare his defence, and that the court may be in no doubt as to the judgment it should pronounce if the defendant be convicted. Archb. Cr. Pl., 42, 43. But the proceeding in this case is not a criminal action, because it is not brought in the name of the state, and cannot be sustained as a civil action because it is not in form a summons and does not require the defendant to answer the plaintiff for a debt; but even if it did, the town magistrate had no jurisdiction of the case as a civil action, unless he was also a justice of the peace, which does not appear. Wilmington v. Davis, 63 N. C., 582; Town of Edenton v. Wool, 65 N. C., 379; City of Greensboro v. Shields, 78 N. C., 417. There is error. The judgment in the court below must be reversed. Let this be certified to the superior court of Henderson county. Error. Reversed.