#### STATE v. EDGAR McKNIGHT.

(Filed 29 April, 1936.)

Criminal Law G m — Plea entered by defendant in recorder’s court held not determinable in Superior Court by evidence dehors the record.

On appeal by defendant from judgment of tbe recorder’s court, tbe court beard evidence dehors tbe record offered by tbe solicitor tending to show that defendant bad pleaded guilty in tbe recorder’s court, tbe record failing to show tbe plea entered by defendant in that court. Tbe judge of tbe Superior Court found, from tbe evidence offered by tbe solicitor, that defendant bad entered a plea of “guilty” in tbe recorder’s court. Held: It was error for the judge of tbe Superior Court to determine tbe plea entered in tbe recorder’s court upon the evidence dehors the record. Tbe court might have resorted to a writ of certiorari or recordari.

Appeal by defendant from Sink, J., at January Special Term, 1936, of MeckleNbueg.

Criminal prosecution, tried originally in the recorder’s court of the city of Charlotte upon warrant charging the defendant with operating an automobile on a public highway while under the influence of an intoxicant, in violation of 0. S., 4606.

From judgment in recorder’s court that defendant pay a fine of $50 and costs and assigned to work on the roads for ninety days — the road sentence to be suspended on condition the defendant refrain from driving an automobile in this State for that period — the defendant appealed to the Superior Court of Mecklenburg County.

*58"When the ease was called for trial in the Superior Court, the defendant entered a plea of “Not guilty”; whereupon, the solicitor sought to show by evidence dehors the record that he had pleaded guilty in the recorder’s court. The transcript of the record did not show what plea was entered in the recorder’s court.

After hearing evidence, pro and con, the judge found as a fact that the defendant had entered a plea of guilty in the recorder’s court, and declined, in his discretion, to permit the defendant to withdraw his plea entered in the recorder’s court and enter a plea of not guilty in the Superior Court.

Judgment was thereupon rendered that the defendant pay the minimum fine of $50 and costs, and surrender his driver’s license to the clerk.

Defendant appeals, assigning errors.

Attorney-General Seawell and Assistant Attorneys-General McMullan and Bruton for the State.

Carswell & Ervin for defendant.

Stacy, C. J.

On the record as it came from the recorder’s court, the defendant was entitled to a trial de novo in the Superior Court. Ch. 338, sec. 3, Private Laws 1909. The solicitor sought to show by evidence dehors that the defendant entered a plea of guilty in the recorder’s court, and that, therefore, the appeal was only on matters of law, e.g., sufficiency of warrant, validity of statute, or legality of judgment. S. v. Warren, 113 N. C., 683, 18 S. E., 498. Compare S. v. Ingram, 204 N. C., 557, 168 S. E., 837. Without resorting to certiorari or recordari, the judge undertook to determine the question for himself. This was in excess of his authority. S. v. Pasley, 180 N. C., 695, 104 S. E., 533; S. v. Koonce, 108 N. C., 752, 12 S. E., 1032; Neal v. Cowles, 71 N. C., 266.

Let the cause be remanded for disposition sanctioned by law.

Error.