State v. . Boykin

OlaeksoN, J. H. B. Smith, on cross-examination by defendant, was asked: “Why did you not swear out that warrant until the 23d, if it *411 happened on the 11th?” He replied: “I did not know the man’s name. I did not know he lived in Wilson nntil I went to Wilson.” Question: “Who suggested Clifton Boykin was the man ?” Answer: “One of his confederates.” Question: “What was his name? Where did the man live that told you that?” To the above questions the State objected. The objection was sustained and defendant excepted and assigned error. The exception and assignment of error cannot be sustained. The witness had theretofore testified: “I identified the man. The defendant is the man.” The witness did not know his name, one of defendant’s confederates told him. This the defendant elicited on cross-examination. The evidence was irrelevant and its exclusion not prejudicial. The next question set forth by defendant: “Did the court commit error in refusing to set aside the verdict and to arrest judgment as a matter of law for defects appearing in the record?” We think not. It nowhere appears in the record that the defendant raised any objection to the organization of the court until judgment had been rendered. It has long been held in this State that the organization of the court may not be attacked by a plea to the jurisdiction of the court for the reason that such a plea assumes that the court is validly created. Beard v. Cameron, 7 N. C., 181; S. v. Hall, 142 N. C., 710; S. v. Wood, 175 N. C., 809; S. v. Montague, 190 N. C., 841; S. v. Lea, 203 N. C., 13 (28). S. v. Baxter, 208 N. C., 90, is not applicable to the facts in this case. In that case it was held, at p. 94: “We must hold that in the absence of any order of the Governor that a grand jury be drawn at said term, the indictment returned at said time is void, and for that reason the motion of the defendant, first made in this Court, that the judgment in this action be arrested, must be allowed. If we should hold otherwise, the defendant would be deprived of a right guaranteed by the Constitution of this State. Const. of N. C., Art. I, sec. 12.” In the present cause the facts are different from the Baxter case, supra. The defendant was tried on appeal from the recorder’s court on a warrant. There was no objection by defendant to this procedure. The warrant set forth the charge in clear language. Article I, sec. 12, of the Constitution provides: “No person shall be put to answer any criminal charge except as hereinafter allowed but by indictment, presentment, or impeachment.” It has been held in S. v. Crook, 91 N. C., 536 (540), that the words “except as hereinafter allowed” have reference to the succeeding section 13 of the Constitution, and particularly the last sentence therein: “The Legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal.” *412 In S. v. Lytle, 138 N. C., 738, it is said that under this section indictment by grand jury is dispensed with. In the trial of petty misdemeanors, a large class of inferior courts known commonly as “recorder’s courts” has been established between the court of the justice of the peace and the Superior Court. The general laws for the establishment of such courts may be found in Consolidated Statutes, sections 1536-1608. In order that these courts might be permitted to take cognizance of crime and try criminals without indictment, all crimes below the degree of felony have been declared to be “petty misdemeanors.” C. S., 1541, subsection 3. Under the proceedings established in such courts, the complaint and warrant — which, if necessary, must be construed together (S. v. Gupton, 166 N. C., 257) — have been established as the proper proceeding, just as has come down to us from the common law as to crimes the punishment of which is within the jurisdiction of a justice of the peace. C. S., 1549, 1575, 4647, 4648. Under C. S., 1574, appeals are made from the recorder’s court to the Superior Court in the same manner as always made from the court of a justice of the peace to the Superior Court. McNeeley v. Anderson, 206 N. C., 481. When the Superior Court sits upon an appeal from a judgment of a justice of the peace in a criminal action, or a judgment of a recorder’s court, it is sometimes said to be acting under the derivative jurisdiction of the court from which appeal is taken; the trial is had upon the warrant issued by the court which had jurisdiction and which is required to be transmitted to the court with the return to the appeal. Upon such an appeal from an inferior court for a conviction of a petty misdemeanor — and, as will be seen under the section above referred to, all offenses below felonies are petty misdemeanors — the necessity of a bill of indictment in the latter court, that is, the Superior Court, is dispensed with. S. v. Jones, 181 N. C., 543; S. v. Quick, 72 N. C., 241 (242). Of course, where the case is beyond the jurisdiction of the inferior court, it does not reach the Superior Court by appeal, but only by the process of “binding over,” and in such case only is an indictment necessary. S. v. McAden, 162 N. C., 575. In cases determinable before a justice of the peace, and so by reference in a recorder’s court, the action is tried on the warrant and must set out sufficiently the offense charged. S. v. Jones, 88 N. C., 671. It may be amended in Superior Court. S. v. Cauble, 70 N. C., 62; S. v. Koonce, 108 N. C., 752; S. v. Norman, 110 N. C., 484. N. C. Code, 1935 (Michie), sec. 1452, is as follows: “Whenever the Governor shall call a special term of the Superior Court for any county, he shall notify the chairman of the board of commissioners of the county of such call, and such chairman shall take immediate steps to cause com *413 .petent persons to be drawn and summoned as jurors for said term; and also to advertise the term at the courthouse and at one public place in every township of his county, or by publication of at least two weeks in some newspaper published in his county in lieu of such township advertisement.” The notice which is required to be published is designed not for the purpose of warning the jury of the coming term. These persons receive separate notices or summons. Rather, it serves the purpose of notifying the public. Since the origin of our court system, it has been the uniform custom to publish our court proceedings. Except in special instances, the doors are always open for public hearings. C. S., 1452, requiring that notice be given, is designed for the purpose of insuring the continuance of this long established policy. It follows, then, that the failure to comply with the statute goes to the set-up or organization of the court itself rather than of the jury. Under the doctrine of the Hall case, supra, an objection to the organization of the court may not be raised by appeal. We think the notice is directory and not mandatory. The point in question seems not to have been specifically ruled upon by our Court; however, it has been the subject of consideration elsewhere. While there is some conflict in the decisions, we think the better rule is that statutes requiring notice of special terms are merely directory. S . v. Shanley, 38 W. Va., 516; Northwestern Fuel Co. v. Kofod, 74 Minn., 448; S. v. Claude, 35 La. Ann., 71; Blimm v. Com., 7 Bush (Ky.), 320. We do not think that defendant was prejudiced by the irregularity. We think, although no notice was given in accordance with the statute, that these directory matters ordinarily should be complied with by the proper authorities. For the reasons given, we find No error.