#### STATE v. LEVY HYMAN.

(Filed 17 September, 1913.)

1. Constitutional Law — Trial by Jury — Appeal.

Where an appeal from a recorder’s court is provided by statute, a jury trial is afforded the accused in the Superior Court, and hence he is not deprived of this, his constitutional right. Art. I, sec. 13.

2. Recorders’ Courts — Jurisdiction — Misdemeanors—Definition—Interpretation of Statutes.

Where a statute confers original and exclusive jurisdiction on a recorder’s court over petty misdemeanors, the question as to the extent of the jurisdiction conferred is resolved under Re-visal, sec. 3291, which defines the line between felonies and misdemeanors to be that a felony is one punishable by death or imprisonment in the State’s Prison, and that all other crimes are misdemeanors.

3. Interpretation of Statutes — Conflicting Terms — Perjury—Constitutional Law.

Revisal, 3615, calls perjury a misdemeanor, but makes it a felony by the punishment imposed thereon. Jurisdiction thereof cannot be given to a recorder’s court, where the statute specifies that it shall have jurisdiction of misdemeanors; while the two sections of the Revisal should ordinarily be construed together, yet if one provision is unconstitutional and the other is not, the latter will be held as controlling. Const., Art. I, secs. 12 and 13.

4. Constitutional Law — Indictment—Grand Jury — Recorder’s Court —Jurisdiction.

The offense of perjury is a felony, and where a conviction thereof is had in the Superior Court, upon appeal from a re*412corder’s court, without indictment found by tbe grand jury, it is unconstitutional. Const., Art. I, sec. 12. &. v. Cline, 146 N. C., 640, and other like cases, cited and distinguished.

6. Statutes — Criminal Law — Jurisdiction—Misdemeanors—Legislative Powers — Cou.rts—Jurisdiction.

The Legislature may prescribe different punishments for the same offenses, in different counties, and it may reduce the punishment for all offenses so as to make them misdemeanors; but when the punishment has fixed the grade of the offense, it may not be altered by the' name given it in the statute.

Walker and Allen, JJ., concur in result.

Appeal by defendant from Cline, J., at June Term, 1913, of Edgecombe.

Attorney-General Bichett and Assistant Attorney-General Galvert for the State.

G. M. T. Fountain & Son for defendant.

Clark, C. J.

Tbe defendant was convicted of perjury in tbe recorder’s court of Edgecombe. On appeal to tbe Superior Court, be was tried on tbe original warrant and again convicted. Tbe defendant excepted on tbe ground that be could not be tried for tbis offense except upon a bill of indictment found by a grand jury. He relies upon tbe provision in tbe Constitution, Art. I, sec. 12: “No person shall be put to answer a criminal charge, except as hereinafter allowed, but by indictment, presentment, or impeachment.” Section 13 of tbe same article which guarantees tbe right of trial by jury is complied with by a jury trial being given on appeal. S. v. Lytle, 138 N. C., at page 742. Tbe requirement of an indictment, presentment, or impeachment is not dispensed with “except as hereinafter allowed” in section 13 in these words: “Tbe Legislature may, however, provide other means of trial for petty misdemeanors, with tbe right of appeal.”

Tbe question presented, therefore, is whether perjury is a petty misdemeanor in Edgecombe County. Public-Local Laws 1911, ch. 472, provides that tbe recorder’s court “shall have exclusive original jurisdiction of all other criminal offenses com*413mitted within the county below the grade of felony, and the same are hereby declared to be petty misdemeanors.”

Revisal, 3291, defines the line between felonies and misdemeanors as follows: “A felony is' a crime which is, or may be, punishable by death or imprisonment in the State’s Prison. Any other crime is a misdemeanor.” The State, however, relies upon Revisal, 3615, which styles perjury a misdemeanor, though it further provides that it may be punished “by a fine not exceeding $1,000 and imprisonment not more than ten years in the State’s Prison.” There is a palpable contradiction in the two sections, and while the Revisal must be construed together, yet if one provision leads to a conflict with the Constitution^ and the other does not, we must take the latter.

At common law perjury and forgery were misdemeanors, it is true, but there was no imprisonment in the State’s Prison prescribed. Revisal, 3615, is a statute which was enacted in 1791 and conformed to the common law, which at that time made perjury a misdemeanor, and the words “State’s Prison” were written into this section in The Code of 1883, see. 1092. The statute which is now Revisal, 3291) defining the line between felonies,and misdemeanors, was enacted in 1891, just one hundred years later, and is the latest expression of the legislative will. The words in section 3615 making perjury a “misdemeanor,” which was enacted in 1791, evidently retained that definition in Revisal, 3615, by inadvertence, notice not being taken of the fact that imprisonment in the State’s Prison, which had been added to the punishment in 1883, made it a felony under Revisal, 3291.

In S. v. Shaw, 117 N. C., 765, the Court recognized that, under Laws 1891 (now Revisal, 3291) any offense “punishable by death or imprisonment in the State’s Prison” was a felony, and hence that the word “feloniously” should be used in the indictment for such crimes. In S. v. Harris; 149 N. C., 513, Hoke, J., held that the word “feloniously” was not necessary in an indictment for perjury, not because perjury was not a felony, but because the Legislature had prescribed in Revisal, 3247, a form of indictment for perjury, in which that word was omitted, *414and Walker, J., beld to tbe same purport, and on tbe same ground, in S. v. Cline, 146 N. C., 640.

In S. v. Fesperman, 108 N. C., 770, we beld that tbe measure of punishment is the test of'jurisdiction, and that tbe. legislature could not confer upon a justice of tbe peace exclusive jurisdiction of certain offenses unless it restricted tb'e punishment for such offenses to tbe limit allowed a justice of tbe peace. That case has been repeatedly cited with approval. See citations to 108 N. C., 772, in Anno. Ed. For tbe same reason, while tbe Legislature can reduce any offense whatever to a misdemeanor, or even to a petty misdemeanor,»it can only do so effectively by reducing tbe punishment to that allowed for such offenses. It cannot authorize punishment by imprisonment in the State’s Prison for ten years and yet declare such offense to be a petty misdemeanor.

In S. v. Holder, 153 N. C., 606, chiefly relied upon by tbe State, it is beld (at p. 610) that perjury was “still a felony,”' though the word “feloniously” was dispensed with by statute in any indictment for that offense. It was further held that as to the offense charged in that case (throwing stones at.a train) the word “feloniously” was not essential. The ruling in substance was that when tbe statute has styled an offense a misdemeanor which is yet punishable by imprisonment in the State’s Prison, the effect is to dispense with tbe word “feloniously” in tbe indictment; but it was not beld in that case, nor has it been beld in any other, that when the Legislature styles an offense a misdemeanor, but leaves it punishable by imprisonment in the State’s Prison, that tbe constitutional requirement of an indictment by a grand jury is dispensed with. Dispensing with tbe word “feloniously” in nowise impinges upon any constitutional requirement.

Tbe Legislature may prescribe different punishments for the same offense, in different counties, and it may reduce the punishment for all offenses, even those now punished capitally, to an extent that would make any offense a “petty misdemeanor.” But calling an offense a petty misdemeanor does not make it so, when the punishment imposed makes it a felony. In S. v. Lytle, *415 138 N. C., 738, tbe Court beld: “Tbe Constitution not having defined ‘petty misdemeanors/ it was competent for tbe Legislature to define tbe offenses wbicb should be so classified, provided the punishment therein is not that of feloniesWe now reaffirm this. In that case (on page 743) tbe Court states that misdemeanors at common law were divided into two classes: “(1) Those wbicb by reason of their heinous nature might be punished corporally, and (2) those wbicb could not be so punished.” It is then beld that tbe latter can be termed petty misdemeanors, but that tbe former could not be so beld unless tbe punishment was reduced by statute to what would be tbe punishment for petty misdemeanors. Tbe Court said (p-. 744) : “Tbe General Assembly can reduce the punishment, of any and all offenses, and leave'no offense above tbe grade of petty misdemeanors ; but tbe punishment must not be that of felony, for tbe punishment controls tbe definition. S. v. Fesperman. 108 N. C., 770.” That ease has been cited and approved, S. v. Jones, 145 N. C., 460; S. v. Shine, 149 N. C., 480; S. v. Dunlap, 159 N. C., 491, and in several other cases. In tbe last named case tbe Legislature bad made tbe larceny of goods “less than $20 in value” punishable “not to exceed imprisonment in the county jail, or on tbe public roads, .not more than one year,” and tbe Court beld that a statute making such offense a petty misdemeanor and putting it within tbe. jurisdiction of tbe recorder’s court was constitutional, for the punishment was that of a petty misdemeanor.

We are therefore of opinion that tbe offense of perjury being punishable in tbe county of Edgecombe by imprisonment in tbe State’s Prison, that it is not an offense “below tbe grade of felony,” and that tbe statute, Public-Local Laws 1911, ch. 472, does not declare it to be a “petty misdemeanor.” Hence the recorder’s court bad no jurisdiction thereof, and on appeal to tbe Superior Court tbe defendant could not be tried, unless a bill bad been found by a grand jury.

Judgment arrested.

Walkee and AlleN, JJ., concur in result.