State v. Stilley , 4 N.C. App. 638 ( 1969 )

BRITT, J.

The sole question presented by this appeal is whether the superior court erred in refusing to allow defendant’s motion for dismissal on the ground of double jeopardy.

The record discloses that the case was called for trial in the Municipal Court of the City of Winston-Salem on 19 December 1967. After defendant pleaded not guilty, witnesses for the State were called and sworn and a police officer of the City of Winston-Salem proceeded to take the witness stand and testify. During the officer’s direct examination by the solicitor, he testified that a breathalyzer test was administered to the defendant and started to relate the results of said test. At that point, counsel for defendant objected and the judge sustained the objection. Thereupon, the solicitor requested that the case be continued until the next day, which request was granted over objection of defense counsel. When the case was called for trial on the following day and witnesses for the State were again called and placed under oath, defense counsel made a motion to dismiss the charges on the ground of former jeopardy. On a hearing of the motion, defense counsel was allowed to examine witnesses for the State who testified to the effect that they were prepared and available to testify on the preceding day. The municipal court judge overruled defendant’s motion and proceeded to hear and dispose of the case as above stated.

At the hearings on the motions in municipal court and superior court, defendant introduced in evidence a provision of the Code of the City of Winston-Salem which states: “The regular (chief) judge or one of the assistant (associate) judges of the municipal court shall preside over the sessions of the municipal court. Sessions of the court shall be held daily, Saturdays, Sundays and legal holidays excepted; provided, however, that the regular (chief) judge of the court may, in his discretion, order the holding of sessions on Saturdays.”

Defendant contends that each day in the Municipal Court of Winston-Salem constituted a “session” of the court and that he was subjected to double jeopardy when the court began his trial on one day and then proceeded to continue his case until the next day when trial was resumed and completed. Inasmuch as defendant appealed to the superior court, we deem it unnecessary to pass upon the type or character of “session” employed by the court in which defendant was tried initially.

The Municipal Court of the City of Winston-Salem was established by the 1927 Session of the General Assembly; see Article XV of chapter 232 of the 1927 private laws. No provision was made for jury trials in criminal cases in the court and section 88 provides that “any person convicted in said court shall have the right of appeal to the Superior Court of Forsyth County, and upon such appeal the trial in Superior Court shall be de novo.” Said court was superseded by the implementation of the District Court in Forsyth County on the first Monday in December 1968 pursuant to G.S. 7A-131.

In State v. Goff, 205 N.C. 545, 172 S.E. 407, it is said: “When the effect of an appeal is to transfer the entire record to the appellate court, and to cause the action to be retried in that court as if originally brought therein, as is the case when appeals are taken from a justice’s court upon questions of law and fact, the judgment appealed from is completely annulled, and is not thereafter available for any purpose. (Citations.)”

G.S. 15-177.1, enacted by the 1947 General Assembly, provides: “In all cases of appeal to the superior court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial anew and de novo by a jury, without prejudice from the former proceedings of the court below, irrespective of the plea entered or the judgment pronounced thereon.” In State v. Meadows, 234 N.C. 657, 68 S.E. 2d 406, in an opinion by Ervin, J., the court declared that by virtue of this statute “* * * whenever the accused in a criminal action appeals to the Superior Court from an inferior court, the action is to be tried anew from the beginning to the end in the Superior Court on both the law and the facts, without regard to the plea, the trial, the verdict, or the judgment in the inferior court.” (Emphasis added.) See also Spriggs v. N. C., 243 F. Supp. 57 (M.D.N.C. 1965), and Doss v. N. C., 252 F. Supp. 298 (M.D.N.C. 1966), where quoted principle was followed.

We hold that defendant was not subjected to double jeopardy-in violation of the Federal and State Constitutions and that the superior court did not err in overruling the motion for dismissal of the case.

No error.

Mallard, C.J., and Parrer, J., concur.