State v. . Lakey

Clarkson, J. The merits of the case are not before us. The assignments of errors will be considered together. *573 The Constitution of North Carolina, Art. I, see. 13, says: “No person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors, with the right of appeal.” Private Laws 1915, chapter 180, established the “Municipal Court of the city of Winston-Salem” — a special court for the trial of petty misdemeanors. Section 70, is as follows: “Warrants or other process may be issued by the judge or clerk of said court for any person charged with the commission of. any offense of which said court has jurisdiction, or any person convicted in said court shall have the right of appeal to the Superior Court of Forsyth County, and upon such appeal the trial in the Superior Court shall be de novo.” Section 77, is as follows: “All judgments and orders of the judge shall remain in fieri for thirty days next after the day upon which said judgment or order is announced, and during that period the judge shall have the power and authority to make such changes and modifications in said judgment or order as in his judgment are necessary or just, and with like effect as if made at the time of announcement of the original judgment or order.” Section 78, is as follows: “The judge shall preside over said court and try and determine all actions coming before him, the jurisdiction of which is conferred by this act, and the proceedings of the said court shall be the same as are now prescribed for courts of justices of the peace, and in all cases there shall be 'a right of appeal on the part of the defendant adjudged guilty to an ensuing term of the Superior Court for the trial of criminal cases; .and in all such cases of appeal the defendant shall be required to give bond with sufficient .surety to insure the defendant’s appearance, and in default thereof the judge shall commit such defendant to the common jail of Forsyth County until such defendant shall give bond or be otherwise discharged according to law.” Under C. S., chapter 27, Courts, Art. 16, Appeal, we find: “1528. A new trial is not allowed in a justice’s court in any case whatever; but either party dissatisfied with the judgment in such court may appeal therefrom to the Superior Court, as hereinafter prescribed.” “1529. No appeal shall prevent the issuing of an execution on a judgment, or work a stay thereof, except as provided for by giving an undertaking and obtaining an order to stay execution.” “1530. The appellant shall, within ten days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the *574 defendant did not appear and answer, be shall have fifteen days, after personal notice of the rendition of the judgment, to- serve the notice of appeal herein provided for.” “1531. Where any party prays an appeal from a judgment rendered in a justice’s court, and the adverse party is present in person or by attorney at the time of the prayer, the appellant shall not be compelled to give any written notice of appeal either to the justice or to the adverse party.” In S. v. Johnson, 109 N. C., p. 852, it is decided: “In an appeal from a justice of the peace to the Superior Court, notice must be served by an officer (unless service is accepted or the appeal is taken at the trial), and within ten days both upon the justice who tried the case and upon the appellee, and upon failure to give such notice, unless the judge, in his discretion, permits the notice to be given at the trial, the appeal should be dismissed.” Hunter v. R. R., 161 N. C., 503; Tedder v. Deaton, 167 N. C., 479. We think, like the able attorney for defendants, that the defendants, under the statute, had within ten days after judgment to serve notice of appeal, but this does not avail them here. They did not appeal when judgment was rendered. After the defendants were convicted, and no doubt a plea by them to the court was made for leniency, the defendants paid the cost and agreed to move from the house where they were charged and convicted of keeping a disorderly house. The judgment reads: “The defendants consenting to this judgment.” Defendants upon conviction had a right to appeal by giving notice in open court, if that was not done to serve written notice on the solicitor and the court, within ten days after the judgment. They would have then protected their constitutional rights of trial by jury in the Superior Court. They were charged with a misdemeanor and had a right to waive a trial by jury and consent to the judgment — this they did and cannot now be heard to complain. In S. v. Hartsfield, 188 N. C., p. 360, it is said: “It is the general rule, subject to certain exceptions, that a defendant may waive the benefit of a constitutional as well as a statutory provision. Sedgwick Stat. and Const. Law, p. 111. And this may be done by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it. S. v. Mitchell, 119 N. C., 784.” S. v. Berry, 190 N. C., 363. In S. v. Everitt, 164 N. C., 399, this Court said: “Where a defendant submits or is convicted of a criminal offense and is present when the judge, in the exercise of his reasonable discretion, suspends judgment upon certain terms, and does not object thereto, he is deemed to have acquiesced therein, and may not subsequently be heard to complain *575 thereof; and in proper instances it will be presumed that the court exercised such discretion.” S. v. Tripp, 168 N. C., 153; S. v. Hardin, 183 N. C., p. 815. Whatever may be the decisions of other states, the law is well settled by this Court against the contentions of defendants. It will be noted that in the affidavit of 0. A. Lakey he did not controvert the fact that he consented to the judgment. It is to his credit that he kept the “whiteness of his soul.” The judgment of the court below is Affirmed.