58 N.C. App. 703 | N.C. Ct. App. | 1982
Lead Opinion
Defendant’s only assignment of error is the denial of his motion to dismiss. At trial, defendant did not move to quash the indictment nor did defendant otherwise challenge the sufficiency of the indictment. Defendant did not argue the sufficiency of the indictment on appeal. Despite these circumstances, the bill of indict
Article IV, Sec. 17 of the Constitution of North Carolina makes provision for the removal of judicial officers. Subsection (3) of Section 17 provides as follows:
(3) “Removal of Magistrates. The General Assembly shall provide by general law for the removal of Magistrates for misconduct or mental or physical incapacity.”
Pursuant to the predecessor of that Section, Article IV, Sec. 17(2), the General Assembly enacted G.S. 7A-173. See 1965 Session Laws, Ch. 310, Sec. 1, providing for the suspension, removal, or reinstatement of magistrates. Under that statute, a magistrate may be removed from office by the senior regular resident superior court judge or any regular superior court judge holding court in the district. The statute provides that grounds for removal are the same as for a judge of the General Court of Justice. G.S. 7A-376 sets forth the grounds upon which judges of the General Court of Justice may be removed from office.
The gravamen of the offense with which defendant was charged in this case is misconduct in office. The provisions of G.S. 14-230 and the provisions of G.S. 7A-173 and 7A-376 are in irreconcilable conflict. Although repeal by implication is not generally favored as a rule of statutory construction, Commissioner of Insurance v. Automobile Rate Office, 294 N.C. 60, 241 S.E. 2d 324 (1978), we are persuaded that the enactment of the statutory scheme set out in the sections of G.S. 7A referred to above have, by clear implication repealed G.S. 14-230 so far as that statute applies to magistrates, who are now officers of the General Court of Justice, see Article IV, Sec. 10 of the North Carolina Constitution, and that the pertinent provisions of Chapter 7A of the General Statutes provide the exclusive pro
Accordingly, the judgment of the Court below must be
Arrested and vacated.
Concurrence Opinion
concurs in the result.
I agree with the majority that the conviction of the defendant cannot stand. I do not agree with the reasons they assign for this result. The majority holds that G.S. 7A-173 and G.S. 7A-376 repealed by implication G.S. 14-230 as applied to magistrates. I cannot agree with this holding. G.S. 14-230 provides that a magistrate who is convicted of corruptly violating his oath of office shall be fined or imprisoned in the discretion of the court and shall be punished by removal from office. G.S. 7A-173 provides for the removal of magistrates under certain conditions. I do not believe any of the provisions of this section conflict with G.S. 14-230. There is no reason that there cannot be separate methods of removing magistrates.
I would reverse the judgment of the superior court on another ground. All the evidence shows that at the time Mr. Hafner was ordered to jail, Mr. Hafner was in fact guilty of contempt of court. The defendant was justified in holding him in contempt. I do not believe we should go behind the judgment of a judicial officer and find some other ground for his action when his action is supported by the record. The defendant may have used poor judgment in some of his actions, but I do not believe this should affect the outcome of this case. The State’s theory is that the defendant held Mr. Hafner in contempt for the purpose of extorting $200.00 from him. The evidence justified the defendant in holding Mr. Hafner in contempt. I do not believe we should impugn the defendant’s motives by saying that he held Mr. Hafner in contempt for some reason other than Mr. Hafner’s contemptuous action. I vote to reverse on this ground.
