Opinion
Filed 14 April, 1954.
Criminal Law 67b — On defendants' appeal from conviction in a recorder's court, they moved to quash the warrants on the ground that the recorder's court was established by local act in contravention of Article II, Sec. 29, of the State Constitution. The motion to quash was denied, and defendants appealed, although they had not been tried in the Superior Court. Held: The order was interlocutory and an appeal therefrom must be dismissed. G.S. 15-180.
APPEAL by defendants from Fountain, Special Judge, at November Term, 1953, of WAKE.
Attorney-General McMullan, Assistant Attorney-General Bruton, and Charles G. Powell, Jr., Member of Staff, for the State.
Robert L. McMillan, Jr., and Thomas W. Ruffin for defendants.
The defendants were tried, convicted, and sentenced in the Recorder's Court for Cary, Meredith, and House Creek Townships in Wake County upon separate warrants charging them with a joint violation of G.S. 20-138, which makes it a misdemeanor "for . . . any person who is under the influence of intoxicating liquor . . . to drive any (motor) vehicle upon the highways within this State." The defendants appealed from the sentences of the Recorder's Court to the Superior Court, where the separate warrants were ordered consolidated. The defendants then moved to quash the warrants, alleging as the basis of their motion that the Recorder's Court for Cary, Meredith, and House Creek Townships was established by a local act, to wit, Chapter 897 of the 1949 Session Laws of North Carolina, in contravention of Section 29 of Article II of the State Constitution. The presiding judge overruled the motion to quash, and the defendants, who have never been placed on trial in the Superior Court, appealed, assigning the ruling on the motion to quash as error.
Since such order is interlocutory and does not determine the cause, an appeal does not lie from an order overruling a motion to quash an indictment or warrant. S. v. Burnett, 173 N.C. 750, 91 S.E. 597; G.S. 15-180. For this reason, the appeal is dismissed.
Appeal dismissed.