State v. Parks

200 S.E.2d 837 (1973) 20 N.C. App. 207

STATE of North Carolina
v.
Roger William PARKS, Jr.

No. 736SC606.

Court of Appeals of North Carolina.

December 12, 1973.

Atty. Gen. Robert Morgan and Associate Atty. William A. Raney, Jr., Raleigh, for the State.

Cherry, Cherry & Flythe by Thomas L. Cherry, Ahoskie, for defendant-appellant.

HEDRICK, Judge.

The record filed in this court does not contain the warrants upon which the defendant was tried or the judgment from which the appeal was taken. There is nothing in the record to disclose how the superior court obtained jurisdiction of these cases. The superior court has no jurisdiction to try an accused for a misdemeanor upon a 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 the sentence imposed in the district court. State v. Harold, 14 N.C.App. 172, 187 S.E. 2d 195 (1972); State v. Marshall, 11 N.C. App. 200, 180 S.E.2d 464 (1972); 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. Marshall, supra; State v. Byrd, supra. For failure of the record to show jurisdiction in the superior court and to contain the warrants upon which defendant was tried and the judgment from which the appeal is taken, the appeal will be dismissed. State v. Marshall, supra; State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955); Rules 19(a) and 48, Rules of Practice in the North Carolina Court of Appeals.

Nevertheless, we have carefully reviewed the record which is before us and find no error which would entitle defendant to a new trial.

Appeal dismissed.

PARKER and BALEY, JJ., concur.