State v. Marshall , 11 N.C. App. 200 ( 1971 )

180 S.E.2d 464 (1971) 11 N.C. App. 200

STATE of North Carolina
v.
Jerry Dale MARSHALL.

No. 7125SC106.

Court of Appeals of North Carolina.

April 28, 1971.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Henry T. Rosser for the State.

Ted S. Douglas, Lenoir, for defendant appellant.

BRITT, Judge.

The record filed in this court fails to disclose how the superior court obtained jurisdiction of this case. The superior court has no jurisdiction to try an accused for a misdemeanor on the warrant of the district court unless he is first tried and convicted for such misdemeanor in the district court and appeals to the superior court from sentence pronounced against him by the district court. State v. Byrd, 4 N.C.App. 672, 167 S.E.2d 522 (1969). The Court of Appeals will take notice ex mero motu of the failure of the record to show jurisdiction in the court entering the judgment appealed from. It is the duty of defendant appellant to see that the record on appeal is properly made up and transmitted to the Court of Appeals. State v. Byrd, supra. For failure of the record to show jurisdiction, the appeal must be dismissed. State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955).

Nevertheless, we have carefully reviewed the record that is before us, with particular reference to the questions argued in defendant's brief, but conclude that no error sufficiently prejudicial to warrant a new trial appears.

Appeal dismissed.

CAMPBELL and GRAHAM, JJ., concur.