State v. Caldwell

MORRIS, Judge.

It seems clear that the defendant was convicted in District Court of assault upon a public officer while the officer is attempting to discharge a duty of his office in violation of G.S. 14-33 (b) (4). This charge requires all the essential elements of a charge under G.S. 14-223. (Resisting Officers) and all the elements necessary were included in the warrant. (See State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972), where Justice Sharp, writing for the Court held that where the defendant had been tried on two charges—one under G.S. 14-223 and one under G.S. 14-33 (b) (4)—he had twice been convicted and sentenced for the same criminal offense. There defendant’s conviction of assaulting an officer was vacated and the judgment arrested.)

In State v. Guffey, 283 N.C. 94, 194 S.E. 2d 827 (1973), the defendant was convicted in District Court for driving under the influence fourth offense. The warrant had charged also the operation of a motor vehicle while his operator’s license was permanently revoked. On appeal, he was tried for both offenses charged in the warrant, the solicitor choosing to try him on a first offense charge of driving under the influence. He was found guilty on each count and on appeal to the Court of Appeals the convictions were affirmed, the jurisdictional question not having been raised. The Supreme Court granted certiorari and, in an opinion by Justice Moore, arrested judgment on the charge of driving while his license had been permanently revoked. There the Court said:

“In State v. Hall, 240 N.C. 109, 81 S.E. 2d 189 (1954), this Court said that Sections 12 and 13 (now Sections 22 and 23) of Article I of the State Constitution provide, ‘in essence, that the Superior Court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the Superior Court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor.’ (Citations omitted.) ” Id., at 96.

The warrant in this case charges a specific misdemeanor, a violation of G.S. 14-33 (b)(4). By the provisions of G.S. 7A-272, the district courts have original exclusive jurisdiction of misdemeanors.

The record before us, agreed to by the solicitor, clearly shows that the defendant in Superior Court was tried for the charge of assault with a deadly weapon and convicted of assault by pointing a gun. Nowhere does the record show that the solicitor chose to try him on a lesser included offense, if assault with a deadly weapon be a lesser included offense of the charge in the warrant, nor does the record indicate any agreement to submit the case to the jury on a lesser included offense of assault by pointing a gun. Indeed, the charge upon which he was put to trial, assault with a deadly weapon, is a violation of G.S. 14-33 (b) (1). The charge upon which he was convicted, assault by pointing a gun, is a violation of G.S. 14-34.

The Superior Court has no original jurisdiction of a trial for the misdemeanor violation of either G.S. 14-33 (b) (1) or G.S. 14-34, for one of which defendant was charged and for one of which he was convicted. Its jurisdiction of these offenses is derivative and arises only upon appeal from a conviction in District Court of the misdemeanor for which he stands charged in Superior Court or the misdemeanor with respect to which the jury returned a guilty verdict in Superior Court.

“We must base our decision upon the record as we find it.” State v. Guffey, supra. We, therefore, reach the ineluctable conclusion that defendant’s conviction in Superior Court must be vacated and the judgment arrested.

Judgment arrested.

Judges Campbell and Vaughn concur.