52 S.E.2d 346 | N.C. | 1949
Criminal prosecution begun in the recorder's court of Dunn, North Carolina, upon a warrant based on affidavit charging that defendant (1) "did unlawfully and willfully lewdly and lasciviously associate with and did engage in an act of intercourse with Pauline Hodges, not being married to the said Pauline Hodges," and (2) "did have in his possession 3 1/2 gallons of non-tax paid whiskey for the purpose of sale . . .," etc.
The record discloses:
(1) That in recorder's court of Dunn defendant pleaded not guilty as to each charge so made against him, but was found guilty. Pursuant thereto judgment was pronounced, and defendant appealed to Superior Court.
(2) That in Superior Court "defendant entered a plea of not guilty to fornication and adultery and illegal possession of non-tax paid liquor for the purpose of sale."
(3) That on trial in Superior Court the "jury for their verdict say the defendant is guilty of F A as charged in the warrant and not guilty of illegal possession of non-tax paid liquor," upon which judgment was *173 pronounced, — sentencing defendant "to jail for a term of not less than 20 or more than 24 months to be assigned to work the roads."
Defendant appeals to Supreme Court and assigns error.
While the record on this appeal presents serious questions arising in the course of the trial in the Superior Court, a fatal defect as to the first count appears upon the face of the record proper. No crime is there charged against defendant. Hence in that respect the court has not acquired jurisdiction of defendant, and, in such case the judgment must be arrested. And even though there be no motion for the arrest of judgment, this Court will act ex mero motu, that is, of its own motion, where lack of jurisdiction is apparent on the face of the record. This was the procedure followed in S. v. Morgan,
In connection with the warrant in the present case, it must be borne in mind that the offense of fornication and adultery is statutory in this State. Our statute, G.S.
Thus when the sufficiency of the warrant under which defendant stands charged in the first count is tested by the language of the statute, so interpreted by the Court, "habitual intercourse" is expressly negatived by the words "and did engage in an act of intercourse."
Judgment arrested.