State v. . Cooper , 104 N.C. 890 ( 1889 )

The offense was committed on 27 December, 1887, and a presentment of it was made by the grand jury at a term of the court (891) begun 4 June, 1888, within six months afterwards. The indictment was found at a term begun on 27 October, 1888. There was no evidence that any justice of the peace had taken cognizance of the case before it was tried at said Spring Term, 1889. On the trial there was evidence of such disorderly conduct on the part of the defendant as amounted to a disturbance of the school.

But after the testimony was offered the defendant moved to dismiss on the ground that the punishment prescribed by said section of the Code was a fine not exceeding fifty dollars, or imprisonment for not more than thirty days, and the presentment having been made within six months after the offense was committed it was then exclusively within the jurisdiction of a justice of the peace, and as the Superior Court had no jurisdiction to try then, it had not since acquired the right. The prosecution of a criminal action is begun when the grand jury presents in court a paper, charging that a person mentioned therein committed an offense, designated by its technical name, or by a description equivalent to giving such name, and the presentment so made is recorded in the minutes of the court. If the clerk neglects to enter it the court may subsequently cause a record of the presentment to be made, or of the time when it was brought in by the grand jury. In determining the question whether a prosecution is barred by the statute of limitations it is proper to estimate the time that elapsed between the commission of the offense and the bringing into court of the presentment. S. v. Cox, 28 N.C. 440; Code, sec. 1177.

An indictment can, for the purpose of preventing the bar of (892) the prosecution by the lapse of time, be connected, at the option of the solicitor, by proof with a previous presentment for the same offense; but it does not follow that the defendant can do the same thing in order to oust the jurisdiction of the court.

When the grand jury unadvisedly made the presentment within six months after the offense was committed the court of a justice of the peace had an exclusive right to try it, but the concurrent jurisdiction of the Superior Court attached immediately on the expiration of that period and before the indictment was found. Code, secs. 892 and 922, provides that the Superior Court shall have original jurisdiction "of all offenses whereof exclusive original jurisdiction is given to justices of the peace, if some justice of the peace sall [shall] not within six months after the commission of the offense proceed to take official cognizance thereof." No justice of the peace had taken cognizance of this case so far as the testimony shows, up to the time of trial, and the bar of former acquittal or conviction was not pleaded or relied on.

But it is contended that the inadvertent act of the grand jury in making the presentment in June, 1888, could be used by the defendant to defeat the jurisdiction of the Superior Court on the trial of any indictment found within two years, and would forever prevent the punishment of the defendant unless a prosecution should be instituted in a justice's court. The presentment in the Superior Court, if made within six months, of an offense for that time exclusively cognizable in a justice's court, is like an indictment for the same utterly void for all purposes whatever. It cannot, therefore, in any way affect the validity of a prosecution subsequently instituted in accordance with law.

Affirmed.

Cited: S. v. Carpenter, 11 N.C. 707.

(893)