State v. . Jones , 181 N.C. 543 ( 1921 )

The only assignment of error is that the punishment was cruel and unusual, and this is the only proposition set out in the brief for the State and in the brief for the defendant. That point has been recently reviewed and held adversely to the contention of the defendant in S. v.Woodlief, 172 N.C. 885, where it was held, "Where a statute leaves a punishment for its violation within the sound discretion of the trial court, the sentence imposed will not be reviewed by this Court on appeal where its exercise has not been grossly and palpably abused," and there is nothing in the record which tends to show that such was the case.

The statute, C. S., 4506, provides: "Any person who shall, while intoxicated or under the influence of intoxicating liquors or bitters, morphine or other opiates, operate an automobile upon the public highways of any county or the streets of any city or town in this State, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than $50 or imprisoned not less than thirty days, or both, at the discretion of the court." The offense is a most serious one, and in the judgment of the General Assembly it was necessary to enact this provision for the protection of the public from the dangers incident to the operation of powerful and rapidly moving automobiles operated by persons in the condition denounced in the statute. The penalty was intended to be sufficient to deter from the commission of the crime, and the limitation prescribed a minimum and not a maximum punishment. The assignment of error cannot be sustained upon anything that appears in this record.

At the hearing here an exception was taken, for the first time, that the defendant could not be punished in excess of the jurisdiction of the municipal court, because no bill had been found, but this exception, if it could be taken orally, without assignment in the record, cannot be sustained. The statute creating the Municipal Court of Guilford, Laws 1909, ch. 651, sec. 3, prescribing the criminal jurisdiction of that court, specifies the criminal offenses of which it is given jurisdiction, none of which includes this offense, which indeed was not then created, the offense having been created since by Laws 1919, ch. 243, now C. S., 4506. From this it is clear that such court had no jurisdiction of this offense except to bind over the defendant to the Superior Court, which was done, and the defendant gave bond to appear at that court and "answer this charge." The bond is not set out in the record, but it is to be presumed that the defendant was bound over, reciting that he had been fined and appealed, but his bond was to "appear and answer the charge in the Superior Court," and the recital of the appeal, if made, was mere surplusage as the municipal court had no jurisdiction to do more than bind him over, and the trial in that court was a nullity.

When the defendant, bound over to the Superior Court to answer this charge, in open court pleaded guilty, he waived the indictment. The waiver of the bill of indictment is expressly authorized by Laws 1907, ch. 71, now C. S., 4610, as to "A misdemeanor which does not include or contain the element of fraud, deceit, or malice," and it was entered "upon a plea of guilty" and "with the consent of the defendant's counsel."

The Constitution, Art. IV, sec. 13, authorizes the waiver of a trial by jury "in all issues of fact, joined in any court." If a petit jury can be waived, of course the lesser requirement of the charge being formulated by grand jury could be waived, and C. S., 4610, is, on its face, a restriction upon the unlimited right, theretofore more freely exercised, of waiving an indictment.

On the other hand, if the recorder's court possessed the jurisdiction to render final judgment, notwithstanding C. S., 1567 (last clause therein), upon appeal no indictment was necessary. This was held in S. v. Jones,145 N.C. 460, citing S. v. Lytle, 138 N.C. 746, upon an appeal from the recorder's court of Winston, where it was held: "In the Superior Court, upon appeal from conviction for a petty misdemeanor, indictment by grand jury is dispensed with." In S. v. Jones, 145 N.C. 460, it is said: "In like manner, when a case is tried in the Superior Court on appeal from a justice of the peace, no indictment is required. S. v. Quick, 72 N.C. 243; S. v. Thornton, 136 N.C. 616."

To same purport S. v. Crook, 91 N.C. 540, and the reason is nowhere better given than by Judge Merrimon in that case and by Judge Reade in S.v. Quick, supra. Whether the recorder had jurisdiction or not the sentence appealed from is authorized by the statute and valid.

When the defendant, in pursuance of the terms of his bond, appeared in open court, and with the consent of his counsel pleaded guilty, this was a waiver of indictment for an original offense in that court under the terms of C. S., 4610, and if he appeared to answer the charge upon appeal, no indictment was necessary upon the authorities above cited. In either event, when the defendant pleaded guilty there was no issue requiring a petit jury and still less any requirement of indictment. Why do an unnecessary act? InS. v. Koonce, 108 N.C. 754, Merrimon, C. J., said, "If the defendant pleaded nolo contendere, or `guilty,' the court might have proceeded to give judgment."

In S. v. Warren, 113 N.C. 684, the Court held that "where a defendant pleads guilty, his appeal from a judgment thereon cannot call in question the facts charged nor the regularity and correctness of the proceedings," but only brings up for review whether the judgment is legal upon the charge admitted, and accordingly in this case the sole assignment of error is that the sentence is excessive punishment, forbidden by the Constitution. Judgment.

Affirmed.