Supreme Court of North Carolina, 1964

State v. Davis

Supreme Court of North Carolina · Decided April 15, 1964

261 N.C. 655; 135 S.E.2d 663; 1964 N.C. LEXIS 549

Cases that cite this one

3 later published cases cite this decision.

State v. Carlton (N.C. Ct. App. 2014)
State v. Sadler (N.C. Ct. App. 1973)
State v. Brown (N.C. Ct. App. 1971)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Per Curiam.

The original warrant charges a violation of G.S. 20-138. The warrant as amended charges a violation of G.S. 20-139. Each of these statutes creates and defines a separate criminal offense. Hence, the court had no power to permit the original warrant “to be amended so as to charge an entirely different crime from the one on which defendant was convicted in the lower court.” S. v. Cooke, 246 N.C. 518, 521, 98 S.E. 2d 885, and cases cited; S. v. Cofield, 247 N.C. 185, 188, 100 S.E. 2d 355. Defendant’s exception to the amendment to the original warrant is well taken.

*657Absent a bill of indictment (see G.S. 7-64), the only jurisdiction of the superior court on appeal was to try defendant for the specific misdemeanor for which he had been tried and convicted in the City Court of Raleigh, to wit, a violation of G.S. 20-138 as charged in the original warrant. S. v. Hall, 240 N.C. 109, 111, 81 S.E. 2d 189; S. v. Mills, 246 N.C. 237, 246, 98 S.E. 2d 329. Hence, defendant’s motion in arrest of judgment should have been and is now allowed.

Judgment arrested.

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