State v. . Ivie

Avery, J.: Before the passage of thé Act of 1880, (The ■ Code, Sec. 907) the justice before whom a warrant charging ■a defendant with bastardy was returned had jurisdiction to try, and could not have been compelled to remove the case for tidal to another justice. That statute provided that “in all proceedings and trials before justices of the peace,” upon affidavit of either party to the effect that he cannot obtain justice in the court in which it is pending, the action must be removed to the court of u some other justice residing in the same township,” or to the court of a justice of some neighboring township, “ if there be no *1229 'other justice in said township.” Under the statute, the justice, on the filing of the affidavit, was not authorized by the statute to remove the case for trial to a neighboring township when there was another justice in his own. It was not intended by the Legislature, in giving one party the opportunity to object to trial before a court where there might be some prejudice against him, to afford such party or the objectionable officer the opportunity to annoy his adversary by forcing him unnecessarily to go to a point remote from his home, with all the additional cost and trouble incident thereto. The order of removal was unauthorized and void, and the justice who tried the action had no jurisdiction. Though bastardy is now a petty misdemeanor, it is only where a court has jurisdiction, that a verdict of acquittal is available as a plea in bar. State v. Powell, 86 N. C., 640; State v. Wynne, 116 N. C., 981. Where, under the Act .of 1868, the complaint was not filed by the injured party, or there was a failure to comply with any of the prerequisites to clothing a, justice of the peace with jurisdiction, it was repeatedly held, not only that the whole proceeding before the magistrate’s court was void,, but that, on appeal, the superior court acquired no jurisdiction. If a sufficient time had elapsed for the higher court to acquire concurrent jurisdiction, a new bill could not be sent, but the prosecutor was taxed with the costs of the original void proceeding. In order to the validity of a proceeding, whether civil or criminal, as constituted in the court of the justice or when considered in a higher court on appeal after originating before such a tribunal, it was held that the record must affirmatively show every thing necessary to confer the jurisdiction upon the justice’s court. State v. John son, 64 N. C., 581; Allen v. Jackson, 86 N. C., 321. In State v. Cherry, 72 N. C., 123, it was held that the courts *1230 bad no right to infer, from an attempt in express language0 to confer upon justices of the peace jurisdiction of an offence, a legislative intent, not expressed, but by implication, to reduce the punishment for that particular kind of larceny so as to bring it below the limit prescribed in the Constitution, Art. IV., Sec. 27. It being admitted that there were other justices of the peace in Wentworth township, the justice in Leaksville township had no authority to try the case, and his judgment was void. It was held in State v. Sykes, 104 N. C., 700, that where a justice of the peace, having original jurisdiction of a criminal offence charged in a warrant, transfers it by mistake to a higher court which can take cognizance only on appeal, it is the duty of the higher court to issue an order in the nature of a procedendo to the court where it originated. This was declared to be an exercise of the inherent power of the court to prevent the failure of justice by the escape of a guilty party. Here the justice who issued the warrant had original jurisdiction but the statute made it his duty, on the filing of the affidavit, to remove the case for trial to a justice in the same township. The defendant has never been lawfully convicted, but he ought not to have been allowed the opportunity to escape, and therefore the court properly directed that an order issue to the justice who signed the warrant to proceed, not to fry the indictment, but to provide by order for its removal to some justice living in the same township, unless the application for removal should be withdrawn. This we understand to be the meaning of the words, “ for trial or removal to some justice resident in Wentworth township,” and upon that construction of the order of the court the judgment is affirmed. Affirmed.