State v. Cole

PARKER, Judge.

We note that the record on appeal contains the name of Jarvis L. McIntosh in the caption as one of the defendants. However, the record fails to show that Mr. McIntosh was tried or that any judgment was rendered against him. He is not a party to this appeal, and we direct that his name be removed from the caption.

The indictments on which defendants were tried charge a violation of G.S. 113-103. This statute declares that the possession of any dead game animal during the closed season is unlawful. Violation of G.S. 113-103 is a misdemeanor. G.S. 113-109.

Except as provided in G.S. Ch. 7A, Art. 22, the District Court has exclusive, original jurisdiction for the trial of criminal actions below the grade of felony. G.S. 7A-272(a). These cases were never tried in the District Court but were tried for the first time in the Superior Court. Unless provided for in G.S. 7A, Art. 22, the Superior Court has no jurisdiction to try these misdemeanor cases for the first time. G.S. 7A-271(a) (2) provides that the Superior Court has jurisdiction to try a misdemeanor “[w]hen the charge is initiated by presentment.” The State contends that the charges in the present cases were initiated by presentment, that G.S. 7A-271(a) (2) applies, and that therefore the Superior Court had jurisdiction to try defendants for the first time on these misdemeanor charges. We do not agree.

The fallacy of the State’s position is that the cases which were tried in the Superior Court involved different offenses than were alleged in the presentment. The presentment alleged that defendants violated the North Carolina game laws “by taking and possessing a bear in Tyrrell County during closed season, contrary to Chapter 102 of the 1973 North Carolina Session Laws and G.S. 113.” (The last statutory reference is apparently to the entire Chapter 113 of the General Statutes.) The verb “take,” when used with fish or game as the object, means “to get possession of ... by killing or capturing.” (Emphasis added.) Webster’s Third New International Dictionary (1968). Therefore, a charge that the accused violated the game laws “by taking and possessing” a game animal during closed season does not charge the offense of possessing a dead game animal in violation of G.S. 113-103, which was the offense for which defendants were tried for the first time in the Superior Court. Since the offense for which defendants were tried is a different offense than that charged in the presentment, these cases were not “initiated by presentment” within the exception contained in Subsection (2) of G.S. 7A-271(a). The State does not contend, nor can we find, that these cases come within any other exception set forth in that statute.

The record indicates that the defendants agreed to the State’s motion to transfer the cases to Martin County for trial. The record also contains a stipulation signed by the District Attorney and by the attorney for defendants “that the defendants were properly before the court on a plea of not. guilty and that the charges were heard before a jury duly and properly empaneled at the June, 1976 Criminal Session of the Martin County Superior Court.” The agreement by defendants to the transfer of the cases for trial and the above stipulation could not confer jurisdiction on the Superior Court to try for the first time these misdemeanor cases.

Since the Superior Court had no jurisdiction to try these cases for the first time, the judgments appealed from are vacated and these cases are remanded to the Superior Court in Martin County with direction that they be transferred to the District Court in Tyrrell County for disposition by that court of the charges contained in the indictments against the defendants. See State v. Wall, 271 N.C. 675, 157 S.E. 2d 363 (1967).

Judgments vacated and cases remanded.

Judges Britt and Martin concur.