{
  "id": 11271180,
  "name": "STATE v. SHINE",
  "name_abbreviation": "State v. Shine",
  "decision_date": "1908-11-19",
  "docket_number": "",
  "first_page": "480",
  "last_page": "482",
  "citations": [
    {
      "type": "official",
      "cite": "149 N.C. 480"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "139 N. C., 618",
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    {
      "cite": "138 N. C., 738",
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      "cite": "117 N. C., 697",
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      "cite": "116 N. C., 978",
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      "cite": "106 N. C., 766",
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  "last_updated": "2023-07-14T21:20:43.519867+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. SHINE."
    ],
    "opinions": [
      {
        "text": "Clare, O. J.\nThe defendant was tried in tbe Superior Court upon- appeal from tbe recorder\u2019s court of Monroe. Tbe offense charged was retailing spirituous liquor. In tbe warrant, it was charged that tbe offense bad been committed unlawfully, \u2022 wilfully and \u201cfeloniously.\u201d Tbe punishment prescribed is that of a misdemeanor (Rev. 3291) and that fixes tbe grade of tbe offense, State v. Fesperman, 108 N. C., 770; State v. Lytle, 138 N. C., 744. Tbe word \u201cfelon-iously\u201d must therefore be treated as surplusage (State v. Edwards, 90 N. C., 710, and cases there cited) as must also the allegation that the' defendant was \u201cguilty of a second offense.\u201d The unnecessary words did not vitiate. State v. Fain, 106 N. C., 766; State v. Hart, 116 N. C., 978; State v. Darden, 117 N. C., 697. Besides, on appeal,, his Honor permitted the warrant to be amended, as he had the right to: do, Bev., sec. 1468, by striking out these superfluous words, and still \u201csufficient matter appears in the bill to permit the court to proceed to judgment,\u201d Bev., sec. 3254, for an offense under Laws of 1905, ch. 497, see. 12.\nLaws 1907, ch. 860, sec. 4 (5), creating the recorder\u2019s-court of Monroe, provides that: \u25a0 \u201cSaid court shall have exclusive original jurisdiction to hear and determine all Other-Criminal offenses committed, within- the county of Union below the grade of a felony as now defined by law, and all other such offenses committed within the county of Union are hereby declared to be petty misdemeanors.\u201d\nThe Constitution, Art. IY, sec. 12, gives to the General Assembly express power to allot and distribute the jurisdiction below the Supreme Court, among the other courts prescribed in the Constitution, or which may be created by the-legislature, in such .manner as it may deem best, if done without conflict with other provisions of this Constitution. In pursuance of this \u2018provision, the General Assembly created criminal courts, with right of appeal direct to this Court. This, we were compelled to hold, was \u201cin conflict with other provisions of this Constitution.\u201d Rhyne v. Lipscombe, 122 N. C., 650; Tate v. Commissioners, ib., 661.\nIn response to the public needs and \u00e1 general public de-1 t mand for' courts that could make speedy \u2018 and inexpensive1 trial of lesser offenses, the General Assembly thereupon iit-' stituted the policy of establishing courts for the trial fif petty-misdemeanors, without jury, preserving .the'right to'-a-jury-trial by giving tbe right of appeal with a trial de novo in tbe Superior Court.\nTliis was assailed by attacking tbe statute creating tbe Police Court of Asheville, but it was held constitutional in State v. Lytle, 138 N. C., 738, after tbe fullest consideration. It was there, held at pp. 743, 744, that tbe General Assembly, having transferred high misdemeanors into the grade of felony, was acting in the scope of its powers in classing all other misdemeanors as petty misdemeanors. This not only complies with the words and spirit of the Constitution, but a party who has been tried before one of these courts, with opportunity to answer, has been put to no disadvantage as compared with those whose first hearing is before the grand jury, where neither he nor his witnesses have any opportunity to be heard. The right of appeal preserves the right-of trial by jury. State v. Jones, 139 N. C., 618; and State v. Brittain, 143 N. C., 670, citing with approval State v. Lytle, supra. Though the defendant was sentenced to twelve months on the roads, he was convicted of a misdemeanor only, and had his trial before jury and judge in the Superior Court.\nIn State v. Baskerville, 141 N. C., 818, this Court sustained the constitutionality of the act creating the Police Court of Raleigh, which conferred upon such court \u201cpower and jurisdiction over all- misdemeanors committed within the corporate limits\u201d of Raleigh or in Raleigh Township.\nThe Police Court of Winston was upheld in State v. Jones, 145 N. C., 460, though its constitutionality was assailed on the same ground, as here, that there was no indictment found by a grand jury. The offense there charged was a \u201cpetty misdemeanor for larceny of goods less than $10.00 in value.\u201d The Court said the \u201csame point has been fully discussed and settled in State v. Lytle, 138. N. C., 738.\u201d We regard the matter as settled.\nNo error.",
        "type": "majority",
        "author": "Clare, O. J."
      }
    ],
    "attorneys": [
      "Assistant Attorney-General Hayden Olement for tbe State.",
      "' Redwine & Sikes for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. SHINE.\n(Filed 19 November, 1908).\n1. Indictment \u2014 Misdeme\u00e1nor\u2014\u201cFeloniously\"\u2014\u201cSecond Offense\u201d-L Surplusage.\nWhen the word \u201cfeloniously\u201d is used in a bill of indictment for an offense which the statute makes a misdemeanor, it, and a charge of \u201cguilty of a second offense,\u201d are regarded as sur-plusage.\n2. Legislative Power \u2014 \u201cRecorder\u2019s Court\u201d \u2014 Jurisdiction, Defined \u2014 . \u25a0 Constitutional Law.\nThe Legislature has the constitutional power to. create a \u201crecorder\u2019s court\u201d of a city, giving it original jurisdiction over all criminal offenses below that of felony, and declare them to lie \u25a0 \u201cpetty misdemeanors.\u201d\n3. Same \u2014 Appeal\u2014Trial by Jury.\nWhen a legislative act creates a court of original jurisdiction for the trial of petty misdemeanors, and prescribes an appeal to the Superior Court, the constitutional right of trial by jury is preserved. '\n4. Legislative Powers \u2014 Courts\u2014Appeal\u2014Grand Jury \u2014 Constitutional Law.\nNo valid objection can he raised to the constitutionality of a court created by the Legislature, preserving the right of appeal to the Superior Court, because a grand jury is not the first to pass upon a bill of indictment charging the offense.\nActioN tried before Long, J., and a jury, August Criminal Term, 1908, of Union. Defendant appealed.\nAssistant Attorney-General Hayden Olement for tbe State.\n' Redwine & Sikes for defendant."
  },
  "file_name": "0480-01",
  "first_page_order": 514,
  "last_page_order": 516
}