13 S.E. 14 | N.C. | 1891
The indictment charges an assault "with a certain deadly weapon, to with, a shovel, of the weight of 5 pounds." The special verdict finds that, in fact, the assault was made by the defendant with his fist and within six months before the true bill was found. It has been repeatedly held that when the indictment in the Superior Court charges an assault with a deadly weapon, the court retains jurisdiction, although in the proof simple assault only shall be shown. S. v. Ray,
It is insisted, however, that by virtue of chapter 152, Acts 1891, a magistrate has no jurisdiction of an assault with a deadly weapon if no serious damage was done. There is in the act no exception as to pending actions, and the present case differs in that respect from S. v. Watts,
The Constitution restricts the jurisdiction of magistrates in criminal matters to cases "where the punishment cannot exceed a fine of $50 or imprisonment for thirty days." It is not competent, therefore, for the Legislature to confer jurisdiction upon magistrates of any offenses of which the punishment affixed by law may exceed that limit. The Code, sec. 987, which was not amended, still prescribes that assaults with a deadly weapon may be punished by a fine and imprisonment, in the discretion of the court. It is true that chapter 152, Laws 1891, amending The Code, sec. 892, purports to give magistrates exclusive original jurisdiction of all assaults in which no serious damage is done, and of all criminal matters arising in their counties "where the punishment prescribed by law shall not exceed a fine of $50 or imprisonment for thirty days." We might surmise that the intention was to confer jurisdiction upon magistrates in cases where, though a deadly weapon was used, no serious damage was inflicted. But the punishment for assaults with a deadly weapon in all cases, whether serious damage is or is not (772) inflicted, being left unchanged — "fine and imprisonment, in the discretion of the court" (The Code, sec. 987) — whatever may or may not have been the legislative intent in amending The Code, sec. 892, the amendatory act could not confer upon the justice's court jurisdiction *539
of an offense the punishment affixed to which may exceed the constitutional limit of such court. The Constitution makes the punishment which the court has authority to impose the test of a magistrate's jurisdiction. It was competent for the Legislature to reduce the punishment of this offense within the jurisdiction of a justice, and the justice would thereupon, ipsofacto, acquire jurisdiction even without further provision, but an act in terms prescribing that a justice of the peace shall have jurisdiction of an offense, without reducing the punishment within the constitutional limitation upon that offense, is of no effect. This has been often decided.S. v. Perry,
Reversed.
Cited: S. v. Price,
