#### STATE v. HERBERT BAILEY.

(Filed 25 February, 1953.)

Constitutional Law § 32: Criminal Law § 56—

Where, upon defendant’s demand for a jury trial, the prosecution is transferred from the recorder’s court to the Superior Court in accordance with statute, Chap. 482, Session Laws of 1951, and the defendant is tried in the Superior Court on the original warrant without an indictment, the judgment must be arrested.

Appeal by defendant from Williams, J., November Term, 1952, of Edgecombe.

Tbis is a criminal action commenced by tbe issuance of a warrant in tbe Recorder’s Court of Edgecombe County, North Carolina, under date of 26 May, 1952, charging tbe defendant with tbe unlawful and willful operation of a motor vehicle upon tbe public highways of tbe State while under tbe influence of intoxicating beverages or narcotic drugs. Tbe warrant was returnable to tbe Recorder’s Court, and upon tbe call of tbe case therein on 16 June, 1952, tbe defendant appeared and made a motion for a jury trial. Thereupon, tbe case was transferred to tbe Superior Court of Edgecombe County as directed in such cases by Chapter 482 of tbe 1951 Session Laws of North Carolina. No bill of indictment was returned against tbe defendant by a grand jury in tbe Superior Court, but tbe defendant was tried by a jury upon tbe warrant issued in tbe Recorder’s Court.

Tbe jury returned a verdict of guilty and tbe defendant in apt time moved to set aside tbe verdict and in arrest of judgment. Tbe motion was denied and from tbe judgment imposed, tbe defendant appeals and assigns error.

Attorney-General McMullan and Robert L. Emanuel, Member of Staff, for the State.

Fountain & Fountain •& Bridgers for defendant, appellant.

DbNny, J.

Tbe Recorder’s Court of Edgecombe County is an inferior court of civil and criminal jurisdiction which was created by Chapter 560, Public Laws of North Carolina, Session of 1909, as amended by Chapter 472, Public-Local Laws of North Carolina, Session of 1911. Section 4 of tbis latter act provides: “Said court shall have, concurrently with justices of tbe peace of Edgecombe County, jurisdiction in all criminal cases arising in said county which are now or may hereafter be given to justices of tbe peace, and, in addition to tbe jurisdiction conferred by tbis section, shall have exclusive original jurisdiction of all other criminal *274offenses committed within the county, below the grade of felony, as now defined by law, and of the crimes of larceny and receiving stolen goods, knowing them to be stolen, wherein the value of the property does not exceed twenty ($20) dollars, and the same are hereby declared to be petty misdemeanors.”

The act also provides that criminal actions originating in said court shall be tried upon warrants; and grants to persons convicted and sentenced in such court, the right to appeal to the Superior Court in the same manner as now provided for appeals from courts of justices of the peace.

Chapter 482 of the 1951 Session Laws, provides: “In the trial of any criminal case in the Recorder’s Court of Edgecombe County, upon demand for a jury trial by the defendant, the judge of the recorder’s court shall transfer said case to the Superior Court of Edgecombe County for trial ...”

In light of the above statutory provisions, and the able and exhaustive opinions of this Court, speaking through Ervin, J., in S. v. Thomas, 236 N.C. 454, 73 S.E. 2d 283, and S. v. Norman, ante, 205, we hold that since the defendant was not tried in the inferior court on the warrant issued therein, a mere transfer to the Superior Court upon a demand for a trial by jury, as provided in Chapter 482 of the 1951 Session Laws, did not give the Superior Court jurisdiction to try him on the warrant. S. v. Thomas, supra. However, since Chapter 482 of the 1951 Session Laws authorizes the transfer from the Recorder’s Court of Edgecombe County to the Superior Court of Edgecombe County, any case within its jurisdiction, upon demand by the defendant for a trial by jury, the Superior Court may put the defendant on trial for the offense charged in the warrant before a petit jury upon the procurement of an indictment duly returned by a grand jury. S. v. Norman, supra.

Judgment arrested.