State v. . Taylor

A warrant was issued, upon the complaint of J. H. Stepp, charging that the defendant "did unlawfully, maliciously, willfully commit damage, injury and spoil upon one fence, the property of J. H. Stepp, in violation of section 1081 of The Code," etc., "by pulling down the same," etc. Upon the trial before the justice of the peace the prosecutor moved to amend the warrant so as to charge that the defendant "did unlawfully and willfully pull down the fence surrounding a cultivated field, the property and in possession of J. H. Stepp." The Code, sec. 1062. The motion was denied by the justice, upon the ground that he had no power to make the amendment; and the prosecutor appealed to the Superior Court. It was also adjudged by the justice of the peace that the prosecution was frivolous and that prosecutor pay the costs. Upon the hearing before Coble, J., at Fall Term, 1895, of HENDERSON, the prosecutor moved to remand the case to the justice of the peace, to the end that the warrant might be amended and the case tried. The motion was denied, and the prosecutor appealed to the Supreme Court. The appeal is without merit and cannot be (1264) sustained. If the justice of the peace had authority to amend the warrant, under section 908 of The Code, he did not do it; and we know of no power we have, or the Superior Court had, to compel him to exercise a discretionary power.

But this being a proposition or motion to strike out the offense charged in the warrant, and to insert another offense, it seems that such amendment was not authorized. S. v. Vaughan, 21 N.C. 535; S. v. Cook, ib., 236.

But the prosecutor had no right to appeal, except, it may be, as to costs. S. v. Powell, 86 N.C. 640.

And while the Superior Court may review the finding of fact and judgment of justices of the peace on matters of costs, in cases like this, the findings of the judge are conclusive upon this Court. And if the judgment of the Superior Court is in accordance with the facts found, that is also conclusive upon this Court. S. v. Hamilton, 106 N.C. 660.

And as the judge below does not set out the facts upon which he founded his judgment, we must take them as being sufficient to justify his judgment.

Affirmed.

Cited: S. v. Morgan, 120 N.C. 564; Pharr v. R. R., 132 N.C. 422;Lumber Co. v. Buhmann, 160 N.C. 387; S. v. Bailey, 162 N.C. 585.

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