State v. Jarvis ( 1981 )

274 S.E.2d 852 (1981)

STATE of North Carolina
v.
Jack Rex JARVIS.

No. 801SC782.

Court of Appeals of North Carolina.

February 17, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Henry T. Rosser, Raleigh, for the State.

Twiford, Trimpi, Thompson & Derrick by Russell E. Twiford, John G. Trimpi and Jack H. Derrick, Elizabeth City, for defendant-appellee.

ARNOLD, Judge.

The State challenges the trial judge's ruling that the Superior Court of Currituck County is without jurisdiction to try this case. It is conceded that the second count of the indictment, failure to discharge an official duty in violation of N.C.G.S. 14-230, is a misdemeanor and would normally be tried in the District Court of Currituck County, but the State argues that the solicitation to possess and deliver more than one ounce of marijuana count constitutes a felony and is properly within the jurisdiction of the Superior Court. Further, under N.C.G.S. 15A-926(a) the State would join the misdemeanor for trial with the felony in Superior Court.

Solicitation to commit a felony, at common law, was a misdemeanor. Perkins, Criminal Law 506 (1957). However, N.C.G.S. 14-3(b) states: "If a misdemeanor offense... be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, ... be guilty of a felony...." Notwithstanding this statute and reported cases, as we have before noted, there is uncertainty concerning what crimes are considered "infamous." See, State v. Keen, 25 N.C.App. 567, 214 S.E.2d 242 (1975); 28 N.C.L.Rev. 103 (1949).

The State argues that defendant's scheme to solicit others to place marijuana in the home of Ms. Thornhill so that defendant subsequently could discover it and arrest Ms. Thornhill shows cold, calculated malice and is an infamous act. Furthermore, the State says, the concealment of the marijuana in Ms. Thornhill's home, of necessity, would have been done in secrecy, and would have amounted to a deceitful and fraudulent crime, a felony, under G.S. 14-3(b).

Unquestionably the State's position is sound and convincing when the State's evidence is considered. However it is not what the evidence shows that we must review. It is the indictment. Are the elements of a felony alleged in the bill of indictment? If not we must affirm the trial court's decision that the Superior Court was without jurisdiction.

Defendant here is charged with solicitation. Examination of the indictment reveals that the elements of secrecy, deceit and intent to defraud are not charged. Moreover, we cannot say that solicitation of another to possess and deliver more than one ounce of marijuana is an infamous offense. No felony is alleged in the indictment. The decision of the trial court is

Affirmed.

WELLS and HILL, JJ., concur.