Opinion
Filed 23 September, 1964.
Criminal Law 19 — Where a prosecution in an inferior court is transferred to the Superior Court upon defendant's demand for a jury trial, defendant must be tried in the Superior Court upon an indictment, and trial on the original warrant is a nullity.
APPEAL by defendant from McLean, J., June 1964 Mixed Session of McDOWELL.
Attorney General Bruton and Deputy Attorney General McGalliard for the State.
Thomas E. White for defendant appellant.
The defendant was arrested on a warrant issued March 31, 1964 by a justice of the peace and made returnable to the McDowell County Criminal Court. She was charged with the wilful abandonment of her two minor children. On May 12, 1964, the State moved for a jury trial. Whereupon, the matter was transferred to the Superior Court as required by N.C. Sess. Laws 1959, ch. 530. When the case was called for trial at the June Term, the solicitor made the following statement to the court: "Your Honor, the defendant should be tried on the warrant. I do not have a proper bill of indictment." The defendant objected to being tried on the warrant and specifically declined to waive the bill of indictment. The court overruled the objection; defendant excepted and entered a plea of not guilty. The jury's verdict was "guilty as charged in the warrant." From the judgment imposed defendant appeals, assigning error.
A defendant may be tried in the Superior Court upon a warrant only when there has been a trial and appeal from a conviction by an inferior court having jurisdiction. G.S. 15-137, G.S. 15-140; State v. Norman, 237 N.C. 205, 74 S.E.2d 602. As this Court has repeatedly held, where there has been no such conviction, trial in the Superior Court upon the original warrant is a nullity. State v. Peede, 256 N.C. 460, 124 S.E.2d 134; State v. Johnson, 251 N.C. 339, 111 S.E.2d 297; State v. Thomas, 236 N.C. 454, 73 S.E.2d 283. The judgment of the Superior Court is vacated and the case remanded for further proceedings as allowed by law.
Judgment arrested.