Opinion
Filed 2 March, 1955.
1. Constitutional Law 32 — The Superior Court has no jurisdiction to try an accused on the original warrant when it does not appear in the record that defendant was ever tried and convicted for the offense in the inferior court or that there was an appeal from the inferior court to the Superior Court.
2. Criminal Law 67 — Where the record fails to disclose jurisdiction in the court below, the Supreme Court acquires no jurisdiction by appeal, and the appeal must be dismissed. Rule 19 (1), Rules of Practice in the Supreme Court.
APPEAL by defendant from Sharp, Special J., August Criminal Term, 1954, of BUNCOMBE.
Attorney-General McMullan and Assistant Attorney-General Moody for the State.
Henry C. Fisher for defendant, appellant.
The record shows that defendant was tried in the Superior Court of Buncombe County on a warrant, purporting to have been issued by a deputy clerk of the Asheville Police Court, and found guilty of illegal transportation of whiskey, a misdemeanor; and that judgment was pronounced, from which defendant appeals. The errors assigned relate to the trial in the Superior Court.
While the warrant was returnable to the Asheville Police Court, it does not appear in the record that defendant was ever tried in that court or that there was an appeal therefrom to the Superior Court.
"The Superior Court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the Superior Court from sentence pronounced against him by the inferior court on his conviction for such misdemeanor. S. v. Thomas, 236 N.C. 454, 73 S.E.2d 283." S. v. Hall, 240 N.C. 109, 81 S.E.2d 189.
"The record fails to disclose jurisdiction in the court below. S. v. Patterson, 229 N.C. 179, 22 S.E.2d 267. As that court was without jurisdiction, in so far as this record discloses, we have none. S. v. Jones, 227 N.C. 94, 40 S.E.2d 700. Therefore, the appeal must be dismissed on authority of S. v. Patterson, supra." S. v. Morris, 235 N.C. 393, 70 S.E.2d 23.
For such failure of this record to show jurisdiction, the appeal must be dismissed. Rule 19 (1), Rules of Practice in the Supreme Court, 221 N.C. 544 (553).
Appeal dismissed.