State v. Covington , 267 N.C. 292 ( 1966 )

148 S.E.2d 138 (1966) 267 N.C. 292

STATE of North Carolina
v.
Henry Spencer COVINGTON, III, and John David Cummings.

No. 665.

Supreme Court of North Carolina.

May 11, 1966.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Benjamin D. Haines, Greensboro, for defendant appellants.

PARKER, Chief Justice.

Defendants, who are indigents, were allowed to appeal in forma pauperis, and are represented here by court appointed counsel.

Defendant Covington excepted to Judge Shaw's entering a judgment revoking probation and activating the sentence of imprisonment imposed upon him for contributing to the delinquency of a minor. Judge Shaw at the hearing before him found as facts from competent evidence presented to him that defendant Covington had willfully violated the conditions of probation upon which a term of imprisonment was imposed upon him for contributing to the delinquency of a minor, and properly revoked probation and activated the sentence of imprisonment.

Each defendant assigns as error the denial of his motion for judgment of nonsuit. However, this assignment of error by each defendant is not brought forward and discussed in their joint brief. Therefore, it is deemed to be abandoned by each defendant. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810; State v. Strickland, 254 N.C. 658, 119 S.E.2d 781.

We have carefully examined the assignments of error in respect to the admission of evidence over the objections and exceptions of defendants and their assignments of error to the charge. Prejudicial error is not shown.

The revocation of the order of probation and activation of the sentence of imprisonment against Covington is affirmed. In the trial of Covington on the assault charge we find no error.

The record before us shows the charge in the indictment against each defendant of the unlawful taking of an automobile in violation of G.S. § 20-105 originated in the Superior Court of Guilford County.

The municipal-county court, criminal division, Greensboro, Guilford County, is a court of limited jurisdiction and has "original, exclusive and final jurisdiction of all violations of the ordinances of the city of Greensboro and of all criminal offenses below the grade of felony, as defined by law * * *," committed within Guilford County, "except the Townships of High Point, Jamestown and Deep River." 1955 Session Laws, Ch. 971, sec. 3(a), (b), (1). The Legislature, in the exercise of its discretion, has denied to the superior court sitting in the counties named in the proviso to G.S. § 7-64 the right to exercise concurrent jurisdiction with inferior courts in the trial of misdemeanors. Guilford County is named in the proviso to G.S. § 7-64. Because of the limitation so imposed on the jurisdiction of the Superior Court of Guilford County, it could not exercise original jurisdiction of the unlawful taking of an automobile, a violation of G.S. § 20-105, which is a misdemeanor. If the defendants are to be prosecuted for a violation of G.S. § 20-105, it must originate in the municipal-county court, criminal division, Greensboro, Guilford County. State v. Cooke, 248 N.C. 485, 103 S.E.2d 846, and authorities cited, appeal dismissed 364 U.S. 177, 80 S.Ct. 1482, 4 L.Ed.2d 1650, petition for rehearing denied 364 U.S. 856, 81 S.Ct. 29, 5 L.Ed.2d 80. This case is reported in the United States Supreme Court Reports as Wolfe v. North Carolina; because of the death of Phillip Cooke, his appeal was dismissed as abated. 359 U.S. 951, 79 S.Ct. 737, 3 L.Ed.2d 759. Any jurisdiction the Superior Court of Guilford County obtains in this case for a violation of G.S. § 20-105 must be derivative. State v. White, 246 N.C. 587, 99 S.E. 2d 772. The conviction of defendants of a violation of G.S. § 20-105 in this case was by a court without jurisdiction to hear and determine the guilt or innocence of defendants on that charge and was therefore a nullity, and the sentence imposed on each defendant on such conviction is void. However, defendants can be tried thereafter when properly charged in a court having jurisdiction over a violation of G.S. § 20-105. State v. Cooke, supra. This fatal lack of jurisdiction appears on the face of the record proper. It is not referred to in the briefs of the Attorney General or of the defendants. The Supreme Court, ex mero motu, arrests the judgment of 12 months imprisonment imposed upon defendant Covington upon his conviction of a violation of G.S. § 20-105, and arrests the judgment of 8 months imprisonment imposed on defendant Cummings upon his conviction of a violation of the same statute. The legal effect of arrest of judgment is to vacate the verdict and judgment below in respect to the charge of a violation of G.S. § 20-105. State v. Williams, 253 N.C. 337, 117 S.E.2d 444, 92 A.L.R.2d 513; State v. Biller, 252 N.C. 783, 114 S.E.2d 659.

The result is this: As to defendant Covington, revocation of probation and activation of sentence of imprisonment affirmed; trial and judgment on assault case, no error. As to defendants Covington and Cummings, judgment arrested as to each defendant of imprisonment imposed upon conviction of a violation of G.S. § 20-105.

MOORE, J., not sitting.